Goldsmith v. City of Atlanta

• Decision Date: 30 November 1937
• Docket Number: 11918.
• Citation: 194 S.E. 528,185 Ga. 96
• Parties: GOLDSMITH et al. v. CITY OF ATLANTA et al.
• Court: Georgia Supreme Court

194 S.E. 528

185 Ga. 96

GOLDSMITH et al. v. CITY OF ATLANTA et al.

No. 11918.

Supreme Court of Georgia

November 30, 1937

Error from Superior Court, Fulton County, Paul S. Etheridge, Judge.

Suit for injunction by Mrs. J. W. Goldsmith and others, executors against the City of Atlanta and others. To review a judgment in favor of defendants, plaintiffs bring error.

Affirmed by operation of law.

J. D. Tindall and J. F. Kemp, both of Atlanta, for plaintiffs in error.

J. C Savage, Bond Almand, C. S. Winn, J. C. Murphy, Chas. B Shelton, and E. Harold Sheats, all of Atlanta, for defendants in error.

Syllabus OPINION.

PER CURIAM.

1. The motion to dismiss the writ of error on the ground that the acts it is sought to enjoin have already been accomplished is denied, the plaintiffs in error having filed under oath a denial of the allegation of fact in the motion. Brown v. Atlanta, 167 Ga. 416(3), 145 S.E. 855.

2. This case being for decision by the entire bench of six Justices, Chief Justice RUSSELL, Presiding Justice ATKINSON, and Justice HUTCHESON being of the opinion that the judgment of the lower court should be reversed, and Justices BELL, JENKINS, and GRICE being of the contrary opinion, the judgment of the trial court stands affirmed by operation by law.

RUSSELL Chief Justice, for reversal.

In participating in this case, I have been influenced, and my judgment perhaps is controlled, by the following decision by Mr. Justice Lamar in the case of Georgia Railroad & Banking Co. v. Atlanta, 118 Ga. 486, 45 S.E. 256, 257 'As dedication implies a gift, and involves an active, not a passive, state of the donor's mind, the owner may testify as to his intent, though that may be overcome by conduct inconsistent with his testimony. City of Chicago v. Chicago, etc., Ry. Co., 152 Ill. 561, 38 N.E. 768. Here there was no evidence to rebut the testimony of the officers of the company that there had been no purpose to dedicate this land as a street, and its conduct in repairing the same for its own private use, and its action in building tracks longitudinally along the strip, was inconsistent with the theory that it had been set apart as a street. Davis v. East Tennessee, etc., Ry. Co., 87 Ga. 605, 13 S.E. 567. Not only must there be an intent to give, but, in case of streets, there must be evidence of an intent to accept. Streets are not an unqualified benefit to a municipality. They impose responsibilities, and the acceptance should be by some explicit act on the part of the authorities, and not by vague, indefinite, and inconclusive actions on the part of a body of citizens loosely called the public. Parsons v. Trustees, 44 Ga. [529] 537. There were no sidewalks, no curbing, no evidence that the city had ever put the land in condition for travel, and nothing to indicate that the municipality had ever treated it as a public street. The case comes squarely within the rule applicable to squares and areas around stations, depots, wharfs, and other places of a quasi public character, and to which the public at large are invited. The fact that streets or roads enter such open spaces from various directions, and that pedestrians and vehicles pass across the square for the purpose of going from one road to another, does not of itself show that the space has been dedicated to a public use. Nor does...