Hobbs v. Ware County

• Decision Date: 07 April 1981
• Docket Number: No. 37246,37246
• Citation: 247 Ga. 385,276 S.E.2d 575
• Court: Georgia Supreme Court
• Parties: HOBBS et al. v. WARE COUNTY, Georgia, et al.

Page 575

276 S.E.2d 575

247 Ga. 385

HOBBS et al. v. WARE COUNTY, Georgia, et al.

No. 37246.

Supreme Court of Georgia.

April 7, 1981.

Jimmy J. Boatright, Alma, for H. A. Hobbs, Jr., et al.

C. Edwin Rozier, Waycross, for Ware County, Georgia et al.

UNDERCOFLER, Justice.

Several residents of the Riverside Park subdivision in Ware County sought to enjoin the county from opening a street shown on their subdivision plat, but never opened. The trial court denied temporary relief and the residents appeal. We affirm.

Riverside Park subdivision was platted in 1906 and a copy of the plat was recorded in the county courthouse. The plat shows a street called Ware Street running between Blocks 14 and 15 of the subdivision, but the street has never been opened to or used by the public. Several lot owners, however, have used part of the street at both ends as driveways. In addition, the land set aside for the street has been used for agricultural and recreational purposes as well as for dog and horse pens. There is evidence that the county pushed some dirt to grade the above-mentioned driveways and has maintained a drainage ditch which crosses the street, but has otherwise not worked the street in any manner.

1. The recording of a subdivision plat raises a presumption of express dedication to the public. E.g., Ross v. Hall County Board of Commissioners, 235 Ga. 309, 219 S.E.2d 380 (1975); Young v. Sweetbriar, 222 Ga. 262, 149 S.E.2d 474 (1966); Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349 (1929). The mere fact that the plat has only the engineer's name on it and not that of the owner or developer does not change this result.

2. The property owners argue, however, that the county has never accepted the dedication and has no right after seventy-five years to open the road. The county has never expressly accepted the road by formal action. Parsons v. Trustees of Atlanta University, 44 Ga. 529 (1871). Nor, under these facts, has there been implied acceptance of the road by improvement and maintenance. Ross v. Hall County Board of Commissioners, supra; Jackson v. Chatham County, 225 Ga. 641, 170 S.E.2d 418 (1969); Lowry v. Rosenfeld, 213 Ga. 60, 96 S.E.2d 581 (1957); Hyde v. Chappell, 194 Ga. 536, 22 S.E.2d 313 (1942).

In Ellis v. Mayor, etc., of Hazlehurst, 138 Ga. 181, 184, 75 S.E. 99 (1912), the difference is noted between acceptance of an expressly dedicated street and an impliedly dedicated street. "Where the extent of the grant is defined by the landowner himself in his statement making an express dedication to a municipality, it is not necessary that the public authorities should work the entire street within the confines of the grant, to make effectual the act of acceptance. Any improvements or repairs done on the street by the public authorities in recognition of the dedication of a defined strip of land for a street may be regarded as an acceptance of the dedication. 1 Elliot on Roads and Streets, §§ 167, 168, 169. The distinction should be noted between acts of user when solely relied on to raise an implication of dedication, and acts of user as evidencing an acceptance of an express dedication. In the former case a dedication will not be implied beyond the use (Swift v. Lithonia, 101 Ga. 706, 29 S.E. 12 (1897)), while in the latter the...