Healey v. City Of Atlanta

• Decision Date: 02 July 1903
• Citation: 54 S.E. 749,125 Ga. 736
• Parties: HEALEY. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

54 S.E. 749

125 Ga. 736

HEALEY.

v.CITY OF ATLANTA.

Supreme Court of Georgia.

July 2, 1903.

1. Dedication—Intention.

Intention to dedicate property to public use is essential to a dedication.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Dedication, § 13.]

2. Same—Acceptance.

Not only must the owner give, but the public must accept, before there can be a dedication.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Dedication, §§ 64-76.]

3. Same—Implied Dedication.

In every case of an implied dedication it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift.

[Ed. Mote.—For cases in point, see vol. 15, Cent. Dig. Dedication, §§ 20-22.]

4. Same.

The mere fact that the public uses the property of a private individual is not necessarily inconsistent with the retention of dominion by the owner.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Dedication, §§ 20, 21.]

5. Same—Sufficiency of Evidence.

The evidence in the present case was not sufficient to establish either that there was an intention on the part of the owner of the property to dedicate the same to public use, or that it had been accepted by the public authorities for that purpose.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Prosecution by the city of Atlanta against W. T. Healey. From a judgment overruling a petition for certiorari, defendant brings error. Reversed.

Jno. L. Hopkins & Sons, for plaintiff in error.

J. L. Mayson and W. P. Hill, for defendant in error.

COBB, P. J. Healey brought his petition for certiorari, complaining of a judgment against him in the recorder's court of Atlanta. At the hearing the judge overruled the certiorari, and Healey excepted.

The petition states that Healey was tried in the recorder's court "on the charge of creating a nuisance by erecting and maintaining a fence across a certain place within the limits of said city claimed by said city to be Sunset avenue, a public alley, street, or thoroughfare." The answer of the recorder states: "It is true that on October 26, 1905, the case of the city of Atlanta v. W. T. Healey, who was charged with creating a nuisance by erecting and maintaining a fence across Sunset avenue, a public street or alley in the city of Atlanta, Ga., was tried in the recorder's court of Atlanta." It appears both from the petition and the answer that the accused was convicted and fined by the recorder. There was no judgment providing for the abatement of the alleged nuisance. No ordinance of the city in reference to nuisances within the city is set forth either in the petition or answer. As there Is no allegation in the petition that there is no such ordinance, the presumption is that a valid ordinance was in existence, and the accused was arraigned for a violation of its provisions. Chambers v. Barnesville, 89 Ga. 739, 15 S. E. 634. It was within the power of the city authorities to provide an ordinance declaring the continuance of a nuisance an offense against the city, and such continuance may be prosecuted in the recorder's court, unless there has been a notice to abate. Whenever there is a notice to abate and a refusal to comply with the notice, the offense becomes one against the state and cannot be prosecuted in the recorder's court. Pen. Code 1895, § 641; Vason v. Augusta, 38 Ga. 542.

When the averments in the petition and the statements in the answer in response thereto are considered together, it is apparent that the offense charged against the accused was the maintenance of a nuisance resulting from the obstruction of a public street or public alley of the city. The proceedings in the recorder's court being quasi criminal in their nature, before the accused could be lawfully convicted the evidence must establish beyond a reasonable doubt that an obstruction was placed in the public street or public alley of the city. If the evidence does not establish that the place at which the fence was erected was a public street or alley, or there is a reasonable doubt on this question, theconviction was improper and should have been set aside on certiorari. The evidence establishes that the way claimed to be public is over land the title to which is in the accused. The question, therefore, is whether the right of the public to use the way has been acquired as against the accused, who Is owner of the fee. The claim is that the right of the public has been acquired by dedication of the way to a public use. A public street or public alley may come into existence by dedication. "If the owner of lands either expressly or by his acts dedicates the same to public use, and the same is so used for such a length of time that the public accommodation or private rights might be materially affected by the interruption of the enjoyment, he cannot afterwards appropriate it to private purposes." Civ. Code 1895, § 3591. A dedication to public use is, however, not complete until two things appear;...