Lowry v. Rosenfeld
| Decision Date | 11 February 1957 |
| Docket Number | No. 19603,19603 |
| Citation | 96 S.E.2d 581,213 Ga. 60 |
| Parties | M. M. LOWRY v. Alex H. ROSENFELD. |
| Court | Georgia Supreme Court |
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, 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.
Sam G. Dettelbach, Atlanta, for defendant in error.
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 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 buildings, and the road until the respective owners thereof expressly dedicated it to DeKalb County for parking and vehicular travel by the public. C. A. Cooper, as a witness for the defendant, by affidavit deposed: He had been an employee of DeKalb County for the preceding 21 years, during which period he was for 17 years in charge of the Druid Hills Sanitary District and for the remaining years and presently is Director of DeKalb County's Sanitary Department. During the entire period of his employment, the paved area between the plaintiff's building and South Oxford Road was maintained by DeKalb County--it was patched and swept every week with county labor. At no time during his employment by the county, has the owner of the plaintiff's building objected to, interfered with, or complained about the county's upkeep and maintenance of the area in question; and during the entire period of his employment it has been used continuously by the public for parking and vehicular travel until this litigation was instituted.
1. Dedication is...
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Postnieks v. Chick-Fil-a, Inc.
...the fact that a significant percentage of the public using the dedicated land are commercial patrons of the land owner's property. See Lowry v. Rosenfeld25 (parking area in front of land owner's business and other retail shops found to have been dedicated to public use). Nor is a finding of......
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Smith v. State
...made improvements or maintained its upkeep. See Ross v. Hall County Commissioners, 235 Ga. 309, 219 S.E.2d 380 (1975); Lowry v. Rosenfeld, 213 Ga. 60, 96 S.E.2d 581 (1959); Hames v. City of Marietta, 212 Ga. 331, 92 S.E.2d 534 In the case before us the State offered evidence to show that Gl......
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Rouse v. City of Atlanta
...been dedicated to the City. We agree. "Dedication is the setting aside of land by the owner for a public use." Lowry v. Rosenfeld , 213 Ga. 60, 63 (1) , 96 S.E.2d 581 (1957) . OCGA § 44-5-230 provides: After an owner dedicates land to public use either expressly or by his actions and the la......
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Lines v. State
...has been improved and maintained by the authorized public authorities and used by the public for a length of time. Lowry v. Rosenfeld, 213 Ga. 60, 63, 96 S.E.2d 581 (1957). This decision, relied upon by appellees, is distinguishable for these (9) There is no factual dispute in this case tha......
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Real Property
...542, 839 S.E.2d at 10. 238. Id. at 543, 839 S.E.2d at 11.239. Id.240. Id.241. Id. at 543-44, 839 S.E.2d at 11 (citing Lowry v. Rosenfeld, 213 Ga. 60, 96 S.E.2d 581 (1957)).242. Id. at 544, 839 S.E.2d at 11243. Id. (citing O.C.G.A. § 44-5-230 (2020)).244. Id., 839 S.E.2d at 11-12. 245. Id. a......