Jackson v. Chatham County, 25282

• Decision Date: 09 September 1969
• Docket Number: No. 25282,25282
• Citation: 170 S.E.2d 418,225 Ga. 641
• Parties: Katherine P. JACKSON et al., v. CHATHAM COUNTY et al.
• Court: Georgia Supreme Court

Page 418

170 S.E.2d 418

225 Ga. 641

Katherine P. JACKSON et al., v. CHATHAM COUNTY et al.

No. 25282.

Supreme Court of Georgia.

Sept. 9, 1969.

Rehearing Denied Oct. 9, 1969.

Syllabus by the Court

1. (a) Whether or not there was an abandonment of the road in question by the public authorities is a question of fact for the jury.

(b) Whether or not defendants Mosher are estopped to deny that the land in question is a public road by virtue of a decree handed down in earlier litigation must be decided on the final trial of the case.

2. It was not error to strike as parties plaintiff all those who owned no property upon which the alleged road abutted.

3. The plea of laches presented an issue of fact for the jury.

Richard J. Harris, Savannah, for appellants.

James F. Becton, Anton F. Solms, Jr., Gene F. Dyar, Savannah, for appellees.

ALMAND, Chief Justice.

In this appeal we review an order denying a motion for summary judgment.

Katherine P. Jackson and others filed an equitable complaint against seven named individuals in their official capacities as Commissioners of Chatham County, and ex-officio judges thereof, and against George and Johh Mosher.

It was alleged: (1) that in June, 1911, certain named parties conveyed to Chatham County a strip of land 30 feet wife (as shown in a described map), 'for the purpose of making a public road and highway of the same with a public landing on Vernon River forever, and to and for no other use, intent or purpose whatsoever'; (2) that Chatham County, through its commissioners, caused a public road and public causeway to the Vernon River to be constructed and maintained within said strip; (3) that the defendants Mosher are owners of Front Lots 7 and 8 and the marshland appurtenant thereto, under a final decree of Chatham Superior Court in which said strip was declared to be a public road, and, 'should not be used by either parties so as to impair its reasonable use by the public, including the parties hereto'; (4) that the defendant commissioners on November 25, 1960, adopted a resolution which recited that the easement had long since been abandoned and that the present owners (defendants Mosher), who acquired the property over 15 years ago, have had charge and custody of the easement and causeway; (5) that on November 29, 1960, the chairman of the county commissioners executed and delivered to the defendants Mosher its deed quitclaiming any and all interest Chatham County had in said easement and causeway, which deed was recorded in the office of the Clerk of the Superior Court on January 25, 1961; (6) that certain stated facts in the resolution of the commissioners as to the easement and causeway were false; and that the county had installed and maintained the easement and causeway as a public road; (7) that said resolution was adopted by the board of commissioners without giving prior notice to the owners of all of the land adjoining the public road and causeway of the intent of Chatham County to abandon the road as required by Code § 95-207; (8) that the defendants Mosher, in February, 1966, caused a large gate to be erected across said road and causeway, thereby blocking the remaining portion of said right of way, this being the first notice to the plaintiffs of the county's purported abandonment of the road.

The prayers of the complaint were: (a) that the purported quitclaim deed from Chatham County to the defendants Mosher be canceled; (b) that the defendants Mosher be enjoined from maintaining any type of obstruction in the road that would interfere with its use by the plaintiffs and the general public; and (c) for a writ of mandamus requiring the defendant commissioners to repair and maintain, 'said abandoned right of way and causeway for the benefit of all residents, citizens and taxpayers of Chatham County.'

The defendants filed their answer in which all the material allegations of the complaint were denied. Other defensive pleadings were also filed, one being a plea of laches by the defendants Mosher.

On November 30, 1967, the plaintiff, Katherine P. Jackson, filed her motion for a summary judgment in which she prayed for a judgment: (1) overruling the plea of laches by the defendants Mosher, and (2) canceling the commissioner's resolution of November 25, 1960, and the purported quitclaim deed of November 29, 1960. On the hearing of this motion for a summary judgment, and court had before it certain affidavits of the plaintiff Jackson and others in support of her motion; and certain affidavits of the defendant commissioners and defendants Mosher.

The court, on April 16, 1969 entered an order: (1) denying the motion of Katherine P. Jackson for a summary judgment seeking: (a) a judgment setting aside, canceling or rescinding the resolution and quitclaim deed and (b) a judgment overruling the plea of laches.

1. (a) In order to obtain the cancellation of the quitclaim deed, and require the county to maintain the strip in question as a public road, the plaintiffs...