Lines v. State

• Citation: 245 Ga. 390,264 S.E.2d 891
• Decision Date: 06 March 1980
• Docket Number: Nos. 35333,s. 35333
• Parties: LINES et al. v. STATE of Georgia et al. (two cases). MAUPIN v. STATE of Georgia et al. J & W HOLDING COMPANY v. STATE of Georgia et al. to 35336.
• Court: Supreme Court of Georgia

Page 891

264 S.E.2d 891

245 Ga. 390

LINES et al. v. STATE of Georgia et al. (two cases).

MAUPIN v. STATE of Georgia et al.

J & W HOLDING COMPANY v. STATE of Georgia et al.

Nos. 35333 to 35336.

Supreme Court of Georgia.

Argued Sept. 18, 1979.

Decided March 6, 1980.

Moreton Rolleston, Jr., Atlanta, for appellants in No. 35333.

Arthur K. Bolton, Atty. Gen., Patricia T. Barmeyer, Asst. Atty. Gen., Dillard & Shearer, G. Douglas Dillard, Troutman, Sanders, Lockerman & Ashmore, John J. Dalton, Atlanta, Dickey, Whelchel, Miles & Brown, Terry L. Readdick, Brunswick, for appellees in No. 35333.

G. Douglas Dillard, Patrick F. Henry, Jr., Atlanta, for appellant in No. 35334.

Arthur K. Bolton, Atty. Gen., John J. Dalton, June Ann Kirkland, Moreton Rolleston, Jr., Atlanta, Terry L. Readdick, Brunswick, for appellees in No. 35334.

John J. Dalton, Atlanta, for appellant in No. 35335.

Arthur K. Bolton, Atty. Gen., G. Douglas Dillard, Moreton Rolleston, Jr., Atlanta, Terry Readdick, Brunswick, for appellees in No. 35335.

Arthur K. Bolton, Atty. Gen., Don A. Langham, Asst. Atty. Gen., Terry L. Readdick, Brunswick, for appellants in No. 35336.

John J. Dalton, G. Douglas Dillard, Moreton Rolleston, Jr., Atlanta, for appellees in No. 35336.

BOWLES, Justice.

Each of the individual and corporate appellants in the above cases owns one or more lots in East End Subdivision of St. Simons Island, Georgia. The original plat of this subdivision was made in the year 1911 at which time the lots in question fronted on the Atlantic Ocean, but with a platted but unopened street entitled Beach Drive dividing the lots in the subdivision from the high water mark of the Atlantic Ocean. All parties in this case concede that the high water mark of the Atlantic Ocean had in the year 1953 moved inward on each of the lots in question. Thus Beach Drive shown on the original survey though never opened, was totally obliterated through erosion. Since 1953 the high water mark has reversed itself and moved toward the ocean leaving certain accreted land between the lots of the owners shown on the original survey, and the present high water mark of the Atlantic Ocean. The ownership of accreted land was in question until this court's decision in a previous appeal of this case. State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334 (1976). We there held that the owners of each of the lots in East End Subdivision owned the accreted lands to the high water mark, and in the same decision concluded that the State of Georgia owned the foreshore subject to limited rights of the adjacent owners. Following that decision the case was remanded to the Superior Court of Glynn County for trial on the question of whether or not the accreted lands had been dedicated to public use. The State and Glynn County contend that there was a dedication by the various property owners of the accreted land for public purposes, and that the public had accepted the same. Upon conclusion of the evidence the various property owners made motions for directed verdicts in behalf of each. These motions were overruled, and the jury returned verdicts in keeping with the contentions of the State and Glynn County that the accreted land had been dedicated to the general public. The court rendered a judgment pursuant to the verdicts declaring the land dedicated as a beach and recreational area for the following purposes: to walk, run, lie or sit upon; to use for ingress and egress to the hard sand beach; to use for picnics and other gatherings of friends and families; to station lifeguards for the protection of those using the area; to be used for the stationing of trash receptacles within the area; and for maintenance for the purposes set forth above. The property described in the judgment follows a survey made in the year 1973 and goes further to say: "The tract of land herein described lies southeasterly of Lots 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42 of East End Subdivision as shown on the plat recorded in Deed Book 4-A, pages 772 and 773, Glynn County records."

The individual property owners appeal to this court and while there have been multiple assignments of error by the several parties, we need consider only the question, "whether or not there was sufficient evidence to support the jury's verdict." The State contends that the evidence was substantial, while on the other hand the property owners contend that the State really proved no case at all sufficient to deprive them of their lawful titles.

We have examined the evidence in meticulous detail and conclude that the State's case is deficient for a number of reasons.

(1) A party relying upon an express or implied offer of dedication of land and the acceptance of any such offer has the burden of proving it. Dunaway v. Windsor, 197 Ga. 705, 709-710, 30 S.E.2d 627 (1944); Kesot v. City of Dalton, 94 Ga.App. 194, 94 S.E.2d 90 (1956); 8 EGL 333, Dedication, § 25 (1978 rev.).

(2) ". . . If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict such verdict shall be directed." Code Ann. § 81A-150(a).

(3) "Private property cannot be taken for public use without payment therefor; nor can this end be obtained under a claim of dedication, unless it appears that the owner has expressly given the property, or, by his long- continued acquiescence in the exclusive use thereof, signified an intention to devote it to public purposes." Ga. R. & Bkg. Co. v. City of Atlanta, 118 Ga. 486(1), 45 S.E. 256 (1903). (Emphasis supplied.) This policy of long standing is included in part in our constitution. Art. I, Sec. III, Par. I (Code Ann. § 2-301) of both the 1976 and 1945 Constitutions of Georgia. However, throughout our history, property owners have oftentimes expressly dedicated real estate for public purposes, and when accepted by the public just compensation to the owner is waived. There is no particular form of making a dedication. It may be done in writing or by parole, or it may be inferred from acts, or implied in certain cases from long use. The doctrine was recognized in the early days of this court. See Mayor, etc., of Macon v. Franklin, 12 Ga. 239 (1852). Such a doctrine has been applied to public highways, streets, public squares, land for public buildings, public school properties and the like, and did not necessarily depend upon possession or use for any given length of time. Most cases dealing with the theory involve properties that had been improved and maintained by public authorities. In many instances it would be destructive of public accommodation and private rights to allow revocation of a dedication. The early cases such as Mayor, etc., of Macon v. Franklin, supra, hold that the theory of dedication of land for public use was in the nature of an estoppel in pais and the court would not permit a former proprietor to revoke the dedication.

In the case at bar the theory of dedication relied upon involves several tracts of land (all contiguous except for certain public streets) which are in fact enlargements of existing lots on which the various property owners have houses or other buildings extending from property undisputedly occupied by them in a southeasterly direction to the foreshore. Although the accretion process has made the distances from the several houses involved to the foreshore extended, the action of the State and County is in effect an attempt to have declared a portion of each owner's lot declared to be public property. The evidence shows that none of the disputed property has been improved by any public authority. The only uses of the same, other than the use of individuals in entering upon the property for sunbathing, walking, drinking beer and picnicing, are separate facts that certain lifeguard stands may or may not have been placed on certain portions, ¹ removable trash receptacles may or may not have been placed on certain portions; ² and the county has drained a part of the property at the request of owners for health reasons.

(4) The State and County admittedly introduced no evidence of any express offer of dedication, nor was there any evidence of an express acceptance by any public authority. Thus if the verdict is allowed to stand, it must be based on an implied dedication on the part of the property owners, and acceptance by the public in keeping with the requirements of previous decisions of this court and certain applicable statutes.

(5) "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." Ga. R. & Bkg. Co. v. City of Atlanta, supra, Headnote (4); Healey v. City of Atlanta, 125 Ga. 736(3), 54 S.E. 749 (1906); Tift v. Golden Hardware Co., 204 Ga. 654(4), 51 S.E.2d 435 (1949). Although the trial court in this case refused to allow the property owners to testify regarding their intent to dedicate, and we think erroneously so, ³ the State and County totally failed to show that the public was in exclusive control of the property. The evidence conclusively shows that the owners occupied houses or other buildings on the lots owned by them, and the accreted property which is in question was nothing more nor less than extensions of those existing lots. All parties to the case agree that the area in dispute had totally eroded by the year 1953 and the foreshore had extended landward in that year so as to take in a portion of all the various lots on the original survey. Any evidence of what may have occurred prior to 1953 regarding claimed use of the disputed property would be without probative value in the case. See Smith v. Bruce, 241 Ga. 133, 244 S.E.2d 559 (1978). The evidence also shows without contradiction that the various property owners not only were occupying houses on a portion of the lots in question ⁴ but also used the...