Norrell v. Augusta Ry. & Electric Co

• Citation: 116 Ga. 313,42 S.E. 466
• Court: Supreme Court of Georgia
• Decision Date: 09 August 1902
• Parties: NORRELL. v. AUGUSTA RY. & ELECTRIC CO.

42 S.E. 466

116 Ga. 313

NORRELL.

v.AUGUSTA RY. & ELECTRIC CO.

Supreme Court of Georgia.

Aug. 9, 1902.

PRESCRIPTION—LANDS HELD BY MUNICIPALITY—POSSESSION OP STREET.

1. Prescription does not run against a municipal corporation in regard to land held for the benefit of the public.

2. Accordingly, where a certain strip of land is conveyed to a municipal corporation for use as a public street, and the authorities accept the deed, but open and use but one half, longitudinally, of the land, adverse possession of the remainder by a private individual cannot ripen into a prescriptive title, although such possession is under a deed from the dedicator subsequent to the deed to the municipality.

¶ 2. See Adverse Possession, vol. 1, Cent. Dig. § 45.

(Syllabus by the Court.)

Error from superior court, Richmond county; E. L. Brinson, Judge.

Action by H. D. Norrell against the Augusta Railway & Electric Company. Judgment for defendant, and plaintiff brings error. Affirmed.

E. H. Callaway, for plaintiff in error.

Boykin Wright, for defendant in error.

SIMMONS, C. J. Suit was brought by Norrell against the Augusta Railway & Electric Company. The defendant demurred to the petition, and the court sustained the demurrer. The plaintiff excepted. From the petition it appeared that in 1840 Edward Thomas owned certain land immediately north of the right of way of the Georgia railroad, this land being then beyond the limits of the city of Augusta, but since 1870 within the limits. Thomas by deed conveyed to the county authorities having charge of the county roads a strip of land 70 feet in width off of the south of his land, this strip lying between the railroad right of way and the remaining lands of Thomas, and extending for some 160 feet east and west. This strip was definitely and fully described in the deed, which expressed as its consideration the benefits the grantor and his heirs and assigns expected to derive from the opening of a road thereon. The deed stated that the grantor conveyed this land "on which to locate and open a public road from the city of Augusta to the Turknett Springs road." The county authorities accepted this deed, and immediately proceeded to locate a road upon the strip conveyed. This road was opened only 35 feet wide, occupying the half of the strip which was next to the remaining lands of the grantor. The road so opened was known as "Railroad Avenue." The unused strip 35 feet wide lay next to the railroad right of way the entire length of the strip. The possession of this portion, unused by the county authorities, was retained by Thomas, who, in 1845, made a deed of his lands to Hight, and included therein "all right, title, and interest of the [grantor] to a narrow strip of land between said rail road and said railroad avenue or public road, so far as said narrow strip of land fronts the land herein conveyed only." Hight went into possession under this deed, and retained possession until 1801, when he conveyed to plaintiff's father all of the land conveyed to him by Thomas, including the strip between the railroad and the public road. By subsequent instruments, this property was conveyed to the plaintiff. The possession of the plaintiff and his predecessors in title was continuous from the time of Edward Thomas to the year 1900. During part of this time, plaintiff used the land between the railroad and the public road as a woodyard, and one of his tenants erected a shanty on it. During all of this time the public road was never widened. In 1900, the city council of Augusta authorized the defendant to lay a spur track across Railroad avenue from an adjoining cross street. The defendant laid the track upon a portion of the strip which was in the possession of the plaintiff, took possession of the entire unused strip, and used part of it for piling and storing iron rails. This was done over the remonstrance of the plaintiff, who thereupon filed this petition. The petition alleged that the land in dispute was worth $1,000, and prayed, as actual and vindictive damages, for the defendant's trespass, $2,000.

1, 2. That prescription does not in any case run against the state itself is no longer open to question. Glaze v. Railroad Co., 67 Ga. 761; Kirschner v. Same, Id. 760. There is also no doubt that, when the city limits of Augusta were extended so as to include this land, the road became a city street, and the city succeeded to the rights and jurisdiction of the county over it. We are also clear that by the acceptance of the deed the authorities accepted the...