Kelsoe v. Mayor and Town Council of Oglethorpe
| Decision Date | 12 August 1904 |
| Citation | 48 S.E. 366,120 Ga. 951 |
| Parties | KELSOE v. MAYOR AND TOWN COUNCIL OF OGLETHORPE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Before a municipality can acquire by dedication an easement over a tract of land for use by the public as a street, there must be an acceptance of the easement by the municipality.
2. Such acceptance may be shown by proof that the municipal authorities assumed control over the street, but acceptance will not be implied as to a portion of a street laid out by the owner of the land, but over which the municipal authorities did not undertake to exercise any control.
3. While prescription does not run against a municipal corporation with respect to land granted to it for the use of the public, yet a municipal corporation may, by abandonment relinquish its control over a street which has been dedicated to it for public use.
4. Under the evidence submitted to the trial judge, it was error to refuse an interlocutory injunction.
Error from Superior Court, Macon County; Z. A. Littlejohn, Judge.
Action by M. M. Kelsoe against the mayor and town council of Oglethorpe. Judgment for defendant, and plaintiff brings error. Reversed.
J. H Hall, for plaintiff in error.
Davis & Turner, for defendant in error.
Mrs. M M. Kelsoe instituted an equitable proceeding against the mayor and town council of Oglethorpe to enjoin the defendant from opening and improving certain streets over land to which she claimed the absolute title. The defendant denied that the plaintiff had title to the land over which the municipal authorities had undertaken to lay out these streets, and alleged that in 1849 Judge E. G. Cabaniss, who was then the owner of the land claimed by the plaintiff, as well as of the land now occupied by the town of Oglethorpe, made a plan and map dividing his land into squares, streets, and alleys; that lots were sold with reference to such plan and map; and that the streets now sought to be opened were streets which were defined in said map, and which had been dedicated to the municipality for the use of the public. The defendant further pleaded that in a former suit between it and the plaintiff, the merits of the present controversy were adjudicated adversely to her, and that she was precluded by the judgment rendered in that suit.
On the hearing before the court for an interlocutory injunction, the following facts were made to appear: In 1849 Judge E. G. Cabaniss was the owner of a large tract of land, and in that year had it surveyed and platted into town squares, streets, and alleys. Some of the lots in these squares were sold at public outcry with reference to a map made in accordance with said survey. Within the limits of the land claimed by Mrs. Kelsoe, streets were laid off on this map, but none of these streets have been used by the public within the past 40 years, nor has the municipality at any time during that period exercised any control over the same. In 1877 Mrs. Kelsoe purchased her land from W. B. Hill, who held title under Cabaniss and his grantees. In the deed from Hill to Mrs. Kelsoe, two of the boundaries of the land she purchased were named to be Macon and Crescent streets. At that time the land was inclosed, and had been cultivated as a farm by her predecessors in title for at least 13 years. Since her purchase, she has been in the actual, open, peaceable, and exclusive possession of the land, cultivating it as a farm, without let or hindrance on the part of the town of Oglethorpe or any person whomsoever. The streets which were sought to be opened by the town authorities were the same streets which had been laid off and defined in the Cabaniss map.
There was also evidence to the effect that Judge Cabaniss had undertaken to make a dedication to the town of Oglethorpe of all of the streets shown on this map, for use by the public. But no express acceptance by the municipality of any of these streets was shown, nor does it appear that the town authorities ever exercised any control over the streets laid off on that map within the boundaries of the land now occupied by Mrs. Kelsoe, nor is it clear that they were used by the public as regular thoroughfares at any time. Streets on the opposite side of Macon street, which was the eastern boundary of Mrs. Kelsoe's farm, had been continuously used by the public and had been under the control of the town authorities ever since the town was incorporated; but these streets were never extended, as is now proposed, across Macon street and through Mrs. Kelsoe's land, by the municipality. The public has not used any street over her land for a period of 40 years or more.
Upon this evidence the court revoked the restraining order theretofore granted by him, enjoining the town from opening any streets through the plaintiff's farm; and she excepted to the revoking of this order, and to the refusal of the court to grant her an interlocutory injunction.
1. From the foregoing statement of facts, it will be seen that the town of Oglethorpe asserts a right to open certain streets through the plaintiff's land under an alleged dedication thereof to the municipality made by Judge Cabaniss in 1849. Before there can be a dedication to a municipality of a tract of land laid out by the owner as a street to be used by the public, the municipality must express its assent to the dedication by acceptance. A private individual cannot, by laying out streets through his land, impose upon a municipality the burden of maintaining the same for the use of the public; it has a right either to accept or reject the proffered dedication. Purchasers of lots sold with reference to streets laid out over private property by the owner of the same would acquire the right of ingress and egress over such streets; but the municipality, if unwilling to assume the burden of keeping these streets in repair by accepting in behalf of the public an easement over the land thus set apart as thoroughfares, would have no right to exercise control over the same, or prevent them from being closed or obstructed. In other words, a...
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