Gordon County v. Town of Calhoun
| Decision Date | 08 August 1907 |
| Citation | 58 S.E. 360,128 Ga. 781 |
| Parties | GORDON COUNTY et al. v. MAYOR, ETC., OF TOWN OF CALHOUN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
K., in pursuance of an obligation previously entered into, granted sold, and conveyed to the judges of the inferior court of Gordon county certain described lands, including the tract in controversy, and inserted in the tenendum clause the following provision: "Provided, however, and it is hereby understood, that all that part of said piece of land which lies south of the road leading from the depot to the Oothcaloga Mill, and which has not heretofore been laid off into town lots, shall remain as a common for the town of Calhoun, and no lots shall be sold or timber cut from the same without the joint consent of the judges of the inferior court of Gordon county for time being, and of the said John P. King." Held, that this constituted an express and immediate dedication as to that part of said land which lies south of the road leading from the depot to the Oothcaloga Mill as a common for the town of Calhoun; and the stipulation that no lots should be sold nor timber cut from the land without the joint consent of the judges of the inferior court and of the grantor was not a reservation of any property rights or title inconsistent with the use and occupation of said town as a common.
The land dedicated being situated in the town of Calhoun, that municipality is a proper party plaintiff to equitable proceedings instituted to preserve the use, and prevent interference therewith.
The fact that the town of Calhoun had not been incorporated at the time of the dedication of the common would not destroy the effectiveness of the dedication; the organization and incorporation of the town being then contemplated and shortly thereafter accomplished, and the deed with all its terms and conditions having been accepted by the judges of the inferior court, and the town, after its organization and incorporation, having accepted, used, and enjoyed the common for a long period of time.
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Dedication § 9.]
Error from Superior Court, Gordon County; A. W. Fite, Judge.
Bill by the mayor, etc., of the town of Calhoun against Gordon county and others. Judgment for plaintiffs, and defendants bring error. Affirmed.
In 1850 John P. King and the authorities of Gordon county made and entered into a contract, whereby King agreed to sell and convey to the county authorities certain lands whereon the town of Calhoun is now situated, and the authorities agreed to accept the land, lay out the county site thereon, sell the lots, and divide the proceeds of the sale with King. In 1851 in pursuance of the above contract, King conveyed to the justices of the inferior court of Gordon county the lands described in the controversy. The habendum and tenendum clause of said deed is as follows: At the time this deed was executed the town of Calhoun had not been incorporated, but was incorporated by an act of the Legislature approved the following year, 1852, and the lands to be used as a common are situated within the corporate limits of that town. The town was laid out, lots were sold, and the proceeds divided as was agreed upon, and all that part of said tract of land which lies south of the road leading from the depot to the Oothcaloga Mill was reserved as a common for the town of Calhoun, and no lots were sold nor timber cut from the same. During the past year Henry B. King, the successor in title of John P. King, and the authorities of Gordon county, acting jointly, undertook to convey a part of the "common" to one Gardner. The mayor and aldermen of Calhoun filed a bill to enjoin the sale. The defendants demurred to the petition on the grounds (1) that no cause of action was set out; and (2) that, if the petition did set out a cause of action, the municipality was not a proper party plaintiff. The court overruled the demurrers, and the defendants excepted.
T. W. Skelly and R. J. & J. McCamy, for plaintiffs in error.
Neel & Peeples, for defendants in error.
1. The petition in this case sets forth facts which constitute an...
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