Lowry v. Rosenfeld, 19603

CourtSupreme Court of Georgia
Writing for the CourtCANDLER
Citation96 S.E.2d 581,213 Ga. 60
PartiesM. M. LOWRY v. Alex H. ROSENFELD.
Docket NumberNo. 19603,19603
Decision Date11 February 1957

Page 581

96 S.E.2d 581
213 Ga. 60
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...

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17 cases
  • Postnieks v. Chick-Fil-a, Inc., A07A0270.
    • United States
    • United States Court of Appeals (Georgia)
    • 10 d4 Maio d4 2007
    ...273 Ga. 169, 170-171(1), 537 S.E.2d 356 (2000). 24. Jergens v. Stanley, 247 Ga. 543, 545, 277 S.E.2d 651 (1981). 25. Lowry v. Rosenfeld, 213 Ga. 60, 64(2), 96 S.E.2d 581 26. Healey v. City of Atlanta, 125 Ga. 736, 54 S.E. 749 (1906). 27. Tift v. Golden Hardware Co., 204 Ga. 654, 51 S.E.2d 4......
  • Smith v. State, s. 37291
    • United States
    • Supreme Court of Georgia
    • 17 d4 Setembro d4 1981
    ...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......
  • Rouse v. City of Atlanta, A19A1737
    • United States
    • United States Court of Appeals (Georgia)
    • 10 d1 Fevereiro d1 2020
    ...to the City. We agree.353 Ga.App. 544 "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......
  • Lines v. State, s. 35333
    • United States
    • Supreme Court of Georgia
    • 6 d4 Março d4 1980
    ...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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