Lowry v. Rosenfeld, 19603

• Court: Supreme Court of Georgia
• Writing for the Court: CANDLER
• Citation: 96 S.E.2d 581,213 Ga. 60
• Parties: M. M. LOWRY v. Alex H. ROSENFELD.
• Docket Number: No. 19603,19603
• Decision Date: 11 February 1957

Page 581

96 S.E.2d 581 213 Ga. 60 M. M. LOWRY
v.
Alex H. ROSENFELD. No. 19603. Supreme Court of Georgia. Feb. 11, 1957.
Rehearing Denied Feb. 25, 1957.

Page 582

Syllabus by the Court

Since the undisputed evidence in this case showed a dedication of the land involved, to the public for parking and vehicular use, [213 Ga. 61] and that it had been used for such a length of time that the public accommodation or private rights might be affected by an interruption of the enjoyment, it was an abuse of his discretion, and therefore erroneous, for the trial judge to temporarily enjoin the defendant from parking his automobile on the dedicated area.

James A. Mackay, Thomas O. Davis, W. Dan Greer, Decatur, for plaintiff in error.

Page 583

Sam G. Dettelbach, Atlanta, for defendant in error.

CANDLER, Justice.

In this litigation the plaintiff prayed for an injunction, for actual and punitive damages and for counsel fees. The exception is to a judgment granting a temporary injunction. So far as need be stated, the verified petition alleges: The plaintiff on May 4, 1955, purchased certain realty located in DeKalb County in which he presently has an investment in excess of $45,000. On the land so purchased there is a building, a part of which he uses personally for a dry-cleaning business and the remaining portions of the building are used by his tenants for retail stores. Between the front of his building and South Oxford Road, and as a part of the realty so purchased by him, there is a level strip 140.37 feet long and 39.95 feet wide which has been paved with asphalt at his expense. At each parking place on said area, he has erected a sign which reads: 'Private--15 min.--For customers only.' The defendant operates a restaurant in a building south of but near his property and has daily, except Sundays, from August 11, 1956, to September 18, 1956, parked his automobile on the plaintiff's property, and directly in front of the door to his dry-cleaning business, from 8 a. m. until after 5 p. m. He asked the defendant not to so park his automobile, but he refused to desist from doing so, and his daily parking on the plaintiff's property is a continuing trespass, which a court of equity should enjoin. By his answer, the defendant admitted the allegations of the petition respecting the time and place he parked his automobile but further answering averred that the plaintiff's predecessor in title dedicated the area involved to [213 Ga. 62] DeKalb County to be used by the public for parking and vehicular travel; that the dedication was accepted by the governing body of DeKalb County; and that the public had continuously used it for such purpose without objection or hindrance until this litigation was instituted.

At the interlocutory hearing, the parties stipulated that the plaintiff's warranty deed included the area here involved. The plaintiff introduced in evidence his deed, also his verified petition. The defendant introduced in evidence his verified answer, and Scott Candler, as a witness for him by affidavit deposed: From March 4, 1939, to December 31, 1954, he was DeKalb County's sole Commissioner of Roads and Revenues. During that period, DeKalb County kept up, repaired, and maintained the area involved, and for the 26 preceding years it had been used continuously by the public for parking and vehicular travel. The plaintiff's building was erected prior to the adjacent theater, restaurant, and kindergarten buildings, and as they were erected, the area in front of them was also paved and the sidewalk and curbing in front of the plaintiff's building was also extended. The paving, curbing and laying of the sidewalk were done by DeKalb County. As sole county commissioner, he would not pave the area between the theater, restaurant, and kindergarten...