Mayor v. Franklin

• Decision Date: 31 August 1852
• Docket Number: No. 42.,42.
• Citation: 12 Ga. 239
• Parties: Mayor and Council of the City of Macon, plaintiffs in error. vs. Marcus A. Franklin, defendant.
• Court: Georgia Supreme Court

12 Ga. 239

Mayor and Council of the City of Macon, plaintiffs in error. vs. Marcus A. Franklin, defendant.

No. 42.

Supreme Court of the State of Georgia

AUGUST TERM, 1852.

In Equity, in Bibb Superior Court. Tried before Judge Starke. May Term, 1852.

This bill was filed to restrain the City authorities of Macon, from selling a certain lot of land in the City, which, it was alleged, had been perpetually set apart and dedicated to the use of the public, when the lots in that part of the City were originally surveyed and sold. A demurrer for want of equity, and because the dedication was not charged to have been in writing, was overruled.

The complainant introduced from the records of the Council, the report of a committee made in 1846, who, in answer to an application to lease the lot, had reported that it was reserved to the public; which report was adopted by a vote of the Council. The interrogatories of sundry persons, who had purchased in the vicinity of the lot in question, were then read; who testified that it had been stated by the auctioneer at the sale, that this lot w^: as to be a public lot or common; the Mayor then in office, and some of the Council, being present and assenting thereto. Sundry deeds made by the Mayor to purchasers at the sale, for lots in the vicinity, as also a map of the City, not made by order of the Council, but referred to by them in their deeds, &c. were introduced by complainant. To all of this evidence objection was made by defendant, but overruled by the Court. The Court charged the Jury that no particular form was necessary to constitute a dedication for public use; that whatever showed the assent of the proprietor thereto, the sale of other property under that understanding, and for a price thereby enhanced, and the subsequent use of the land by the public, was good evidence to show such dedication. That if the City Council sold lots to purchasers, with the understanding announced by their auctioneer, that this lot was to be public, and thereby in-duced the purchase of other lots, and in pursuance thereof received the purchase money, and gave deeds therefor; that it was a contract with the citizens purchasing, which should be enforced by the Courts. The Court further charged, that the action of the Council on the report of their committee, was a written admission that this lot was for public use, and that if the complainant afterwards became the owner of lands in the vicinity, he had a right to claim the benefit of the admission and to restrain its sale.

To which several decisions and charges of the Court, defendant excepted.

Poe, Nisbet & Poe, Whittle, for plaintiffs in error.

Hines and C. B. Cole, for defendant in error.

The following points and authorities were submitted for the defendant in error, by C. B. Cole:

1. Lands are dedicated to the public use by the acts of the owner, or by user. Where the owner of land has laid out village lots intersected with roads and public squares, it has been repeatedly held that such roads and public squares are dedicated to public use. 5 Taunton's R. 125. 2 Vermont R. 80. 6 Peters' R. 431. 8 Wendell's R. 85. 11 Wendell's R. 486. 4 Paige's R. 510. 20 Wendell's R. 111. 22 Wendell's Reps. 425. 6 Hill's R. 407.

2. The use, by the citizens, of a piece of ground for public purposes, for a number of years, is evidence of a dedication thereof by the owner to the public, and especially if such use is with the knowledge of the owner. 2 Strange, 1004. 1 Campbell, 260. 11 East. 375. 3 Bingham, 447. Woolrich on Ways, 9 to 13. 6 Wendell, 656. 8 Wendell, 105. 11 Wendell, 499. 12 Wendell, 172. 4 Paige, 513. 3 Kent's Com. 451. 16 Serg. If Rawle, 390, 392, 396. 4 N Hamp. 11 to 15. 2 Vermont, 480. 3 Vermont, 524. 8 Pickering, 504. 6 Peters', 431. 7 Barn. If Cres. 257. 5 Conn. 311.

3. This principle is applicable to rural as well as urban prop-erty, and watering places, docks, landings, open squares, &c. as well as to streets and ways for passage. 4 Paige, 510. 8 T R. 608. 1 Greenleaf, 111. 2 Vert. 480. 12 Wheaton, 582. 6 Peters\', 431. 20 Wend. 111. 22 Wend.425. 6 Hill R.407.

4. The right which the public acquires by dedication is not an interest or profit in the soil of the ground dedicated, but an easement or servitude, subject to which the owner still holds the title and the interest not dedicated, and rests on different principles from an interest or profit in the land of another. 6 Peters', 431. 17 John. 277. Coke Lift. 56, a. Woolrych on Ways, 14, 15, 51, 52. 3 Modern R. 294. 16 Serg. & Rawle, 390. 2 Greenleaf 61. 5 do. 368. 2 Vermont, 480. 3 Vermont, 530. 6 Vermont, 355. 4 Paige, 514. 12 Wheaton, 582. 22 Wendell, 425. 6 Hill R. 407.

5. A user of an easement for a period of time sufficient to give title to land by possession, is sufficient to give a title to the easement. 8 Pickering's R. 508.

By the Court.-—Nisbet, J. delivering the opinion.

I think that all doubts about the correctness of the ruling of the Court in this case, may be removed by keeping steadily in view, the distinction between a license and a dedication to public use. It is true, as a general rule, that easements and all incorporeal hereditaments can be conveyed alone by deed. A license or liberty, attached to an estate in lands, therefore, cannot be conveyed to individuals but by deed, with the same formalities which are necessary to convey the freehold. If created by parol, the title remains in the grantor, and the license may be revoked at his pleasure. The rule is a good one, and founded on as sound views of policy as that which requires all contracts concerning lands to be in writing. A use of lands, although the fee remain in the grantor, is very often as valuable.in interest as the fee itself. There is not in the case of a license, the difficulty which is said to exist in case of a dedication, to wit, the want of a grantee—some person or author ity to receive the fee. The rule is as stated, that a parol licens'is revocable, but it has some exceptions. If the enjoyment of it must be preceded necessarily by the expenditure of money, and the grantee has made improvements or invested capital in consequence of it, it becomes an agreement for a valuable consideration, and he a purchaser for value. In such cases, the books say that it would be against all conscience to permit the grantor to recall the license as soon as the benefit expected from the expenditure is beginning to be derived. Whilst executory, as a general rule, it is revocable, but not after it is executed. Such is a general view of a parol license or liberty; those who wish to see the title unfolded more at large, will find it profitable to turn to the opinion of this Court in Sheffield and others vs. Collier, 3 Kelly, 82. What I have said, may suffice for the purpose of drawing the distinction between that and a dedication.

The doctrine of dedication has not, until now, been before this Court for application. It is one of great practical importance, and ought to be understood by all land-proprietors, more particularly by our Municipal authorities. Acting as they do in character of trustees of a domain which belongs to their constituent body, it is indispensable that they understand what creates an irrevocable pledge of any portion of that domain to public uses. It is of vast importance now, when the facilities of intercommunication tempt the proprietors of lands to lay out towns at every railroad depot, and at every steamboat landing, that those who buy, and those who sell town lots, should understand what are their rights, and what their obligations, touching highways, streets, church and school reservations, commons, springs, and public squares. This title of the law has already become in our country an interesting and wide theme. In England, it seems to have had, up to a recent period, but a limited application; here it has attained to very considerable expansion. I confess that with me it was very much an unexplored region of the science. After the argument of this cause ingenes patebat tellus, and I found it, if not a continent, at least a broad and fruitful land. I do not, upon this occasion, propose to explore it, except to such extent as the necessities of this case require.

A dedication, according to Senator Furman, in the New York Court of Errors, is, " an act by which the owner of the fee gives to the public an easement in his land." 22 Wend. 444. This definition does not convey fully to the mind, the legal import of the word. Where one being the owner of lands consents, either expressly or by his actions, that it may be used by the public for any particular purpose, it is a dedication.

There is no particular form of making a dedication. It may be done in writing, or by parol; or it may be inferred from his acts, or implied, in certain cases, from long use. A grant is not necessary to create it. And in this consists its main difference from a license to individuals. It is made without a grant, and it exists, although the legal title remains in the maker. The technical objection to a dedication was that it could not exist without a valid grant from the owner of the fee, and inasmuch as the public is incapable of contracting, it could not exist at all. The Courts, however, very early overcame this objection, and held that a deed was not necessary to a dedication. The rule that no grantee is required, grows out of the necessity of the case.

Dedications of lands for charitable and religious purposes, and for public highways, are valid without any grantee to hold the fee, and the principle upon which they are sustained, sustains dedications of streets, squares and commons. City of Cincinnati vs. The Lessee of White, 6 Peters' R. 435, 436. Beatty vs. Kurts, 2 Peters' R. 256. Town of Paulett vs. Clark, 9 Cranch,, 292. Lade vs. Shepherd, 2 Stra. 2004. 12 Wheat. 582.

When lands are dedicated, and are enjoyed as such, and rights are acquired by individuals in reference to such dedication, the law considers it...