Hyde v. Chappell

• Decision Date: 22 September 1942
• Docket Number: 14261.
• Citation: 22 S.E.2d 313,194 Ga. 536
• Parties: HYDE v. CHAPPELL, Com'r.
• Court: Georgia Supreme Court

22 S.E.2d 313

194 Ga. 536

HYDE v. CHAPPELL, Com'r.

No. 14261.

Supreme Court of Georgia

September 22, 1942

Syllabus by the Court.

1. If a negative affirmation is an essential element of the case, it must be pleaded and proved. If not essential but pleaded by plaintiff, the defendant's answer denying the allegations of the petition does not constitute a special plea; and where the petition alleges that described land is the property of the plaintiff, and is not a public highway, has not been legally laid out by the county as a right of way or roadway and does not belong to the county, and the answer denies the allegations of the petition and asserts that the land is a public highway, it is not error, after having charged the jury that the burden of proving his case is upon the plaintiff, for the court to fail to charge that if the plaintiff proves that he has title to the land, the burden then shifts to defendant to prove by a preponderance of the evidence that the land is a public highway.

2. The two essentials for the dedication of land for public use are an intention by the owner to dedicate and an acceptance by the public authority of the land for the public use for which it is offered. Such intention and acceptance need not be express, but may be implied from conduct. Maintenance and use by the public as a highway, with knowledge of and without objection from the owner, for a period sufficient in length that the public use and enjoyment and private rights would be materially injured by interruption, is sufficient to show dedication. Where the evidence shows that a particular point obstructed by the plaintiff has been maintained and used by the public as a public highway for more than twenty years, the evidence authorizes the jury to render a verdict in favor of the defendant and against the owner who seeks to enjoin the county from removing an obstruction which he has placed therein.

The petition of Cleve Hyde against Hamp Chappell, commissioner of roads and revenues of Carroll County, alleges that petitioner is the owner and in possession of a certain tract of land in Carroll County, on which he unloaded some lumber in February that the defendant through his agents removed the lumber, and by the use of road machinery seraped out two roads across this tract of land; that such action on the part of the defendant was illegal, and the roads were not laid out by said commissioner as provided by law; that no order was taken or notice given by the county authorities; that the roads thus scraped out by the defendant made four roads leading into the Bankhead Highway within a distance of 100 yards that on June 20, 1941, the plaintiff moved onto said tract of land a certain storehouse, for the purpose of operating a store and filling station; that said building is located on land of petitioner and is not on any right of way or roadway belonging to the county, or any right of way or roadway that has been legally laid out by the county; that on June 25, 1941, the plaintiff was given written notice by the defendant to remove the building; that the defendant is now preparing to remove the same from the premises, unless a court of equity intervenes to enjoin the defendant; and that the plowing up, scraping, and laying out of the two roads across the petitioner's land was an illegal trespass on his property. He prayed for injunction preventing the defendant from interfering with his property by removing the house.

The defendant's answer denied that the plaintiff was the owner of that part of Four Notch public road which the plaintiff obstructed by placing the old building thereon. The answer admitted that the defendant removed lumber from the Four Notch road which the plaintiff placed thereon in February, but denied that the plaintiff owns the land embraced in that public road, which, it was alleged, has been established and used continuously and uninterruptedly as a public highway and has been worked and maintained as such for more than twenty years. In answer to the allegation that the defendant scraped this road, and defendant admits that the county authorities have worked and maintained it as a public road. The answer admits that the plaintiff moved the Dr. Smith office, an old wood frame building, on and into the Four Notch road, running north and south at the intersection in Sand Hill, and within 8 feet of the public well, but denies that the land belongs to the plaintiff, and alleges that it is a part of the public highway. It is further alleged that the plaintiff knows that said land has been used continuously by the public as a public highway, for more than thirty years; and that the plaintiff is undertaking to go forward with stabilizing the old building since the injunction was granted in this case before a hearing herein. It is prayed that the plaintiff be restrained from changing the status of the building until the matter is fully heard by the court; that the restraining order be dissolved; that the plaintiff be restrained from changing the status of the building until the case is finally tried; and that the action be dismissed.

Trial of the case before a jury resulted in a verdict in favor of the defendant. The plaintiff moved for a new trial on the ground that the verdict was not authorized by the evidence, and on special grounds as follows: (1) Assigning error on failure of the court to charge, without request, that if the jury should find that the plaintiff has title to the land in question, they should then look to the evidence to see if defendant has established by a preponderance of the evidence that there is a public road across the land; that the burden would then be upon the defendant to show by a preponderance of the evidence that the road is a public road established by dedication or prescription, as contended. (2) Complaint of the following charge to the jury: 'Where the owner consents for it to be used as a public highway, either expressed or implied, the element of time cuts no figure, but it immediately becomes a public highway; if it is used with the consent of both parties, it immediately becomes a public highway.' (3) That the court erred in failing to charge, without request, that before a first-class road could be established by dedication or prescription, it must be shown that the road was 30 feet in width; that the same 30 feet would have to be used by the general public as originally laid out; and that if the space used was more than 30 feet, or if a different tract was used, other than that dedicated or claimed by prescription, it would not ripen and become a public road; that this same rule would apply to second or third class roads, and if there was more space used by the general public or by the county authorities than that provided by law, no title by prescription or dedication would ripen.

The plaintiff introduced: (1) A deed from J. A. F. Broom, administrator of the estate of John W. Carroll, conveying to the plaintiff a parcel of land in the fifth district of Carroll County, being a part of lots 82 and 111, which the plaintiff claimed to embrace the land involved in this suit. (2) A former county commissioner testified that he did not have knowledge that the particular road here involved was maintained by the county during the period of approximately ten years he was commissioner. (3) Many witnesses testified that this and other roads had through the years shifted from place to place. (4) Other evidence was perhaps sufficient to have authorized a verdict in favor of the plaintiff.

Loyd Plews testified for the defendant that he was employed by the plaintiff to make a survey of the land; that he made a diagram and plat of the land and gave it to the plaintiff that he knew the location of the house which the plaintiff had put in the road; that in making the survey he stopped on the south side of the house and told the plaintiff that he had surveyed as far as the deed would carry him, and that if the plaintiff would furnish him some more deeds he would go further; that at the suggestion of the plaintiff he surveyed the northern part of the land and stopped about 30 feet from the starting point; that this was according to the deed; and that the house moved by the plaintiff and referred to in the pleadings is the the road. F. R. James testified for the defendant that he was sixty-six years of age; that he knew John Carroll; and 'I know where Mr. Hyde placed that Dr. Smith house in the road. That [is] a public road I have known more than thirty years.' This witness testified that he worked that road in 1893, right where the house now sits, and that John Carroll recognized that as a public road, and everybody traveled it. B. F....