Penick v. Morgan County

Decision Date19 August 1908
PartiesPENICK v. MORGAN COUNTY. MORGAN COUNTY v. PENICK.
CourtGeorgia Supreme Court

Syllabus by the Court.

Where land is dedicated by its owner for public use as a public road, the county authorities having jurisdiction over roads can accept such dedication and open a new public road over it without complying with the requirements of Civ. Code 1895, § 520 et seq.

An express dedication of land by the owner thereof for public use as a public road, and an express acceptance thereof by the proper county authorities, need not be shown; but such dedication and acceptance, respectively, may be shown by the acts of such owner and authorities.

A dedication of land by the owner thereof for public use as a public road, and the use of such road by the public as a route of travel, without some recognition of such road on the part of the county authorities, would not make such a road a public road.

A cul-de-sac may be a public road.

A book the contents of which state it is a road register of a certain county, and show entries describing a road as a public road, is not admissible, upon the trial of a case, to show such road was a public road several years prior to such trial, when there is nothing to show, or from which it can be inferred, when such entries were made.

Where a county, in a suit against it, denies that a certain road is a public road, and there is evidence that the county superintendent of roads opened the road, built bridges on it and worked it for several years thereafter, the minutes of the county commissioners having jurisdiction of roads showing that upon an application to them to open the road and make it a public road, two of them were appointed a committee "to go over the ground and investigate it and report to the next meeting," and that "the committee appointed to look into the practicability of opening [such road] *** report in favor of the same and the report is adopted," are admissible, in connection with such oral testimony, to show that the county commissioners intended to open the road as a public road.

Where it appeared that county commissioners having jurisdiction of roads appointed two of their body to open and lay out a public road, under the facts in this case, it was not error to admit testimony that such two commissioners opened and laid out the road, or that they showed the county superintendent of roads where they laid it out.

Where one of the questions involved in a case is whether or not a public road was a public road at a particular time when an injury occurred, evidence that the county hands, under the county superintendent of roads, worked the road after such time, was admissible in connection with evidence that such road had been worked by the county authorities prior to such injury.

The petition in this case was not subject to the general demurrer.

Error from Superior Court, Morgan County; H. G. Lewis, Judge.

Action by J. H. Penick against the county of Morgan. At the conclusion of the evidence, the court directed a verdict for defendant, and plaintiff excepted, and brings error, and defendant filed a cross-bill of exceptions. Reversed on both bills of exceptions.

On an issue in an action for injuries on a defective bridge as to whether the road at the location of the bridge was a public road at the time the injury occurred, evidence that county hands under the county superintendent of roads worked the road after that time was admissible in connection with evidence that the road had been worked by the county authorities prior to the injury to establish such fact.

Entries in an alleged county road register of a certain county are inadmissible to establish that a certain road was a public road at the time of an accident thereon, in the absence of anything to indicate when the entries were made.

Foster & Butter, for plaintiff in error.

O. L. Williford and George & Anderson, for defendant in error.

HOLDEN J.

The plaintiff brought suit against the county of Morgan, alleging that since December 29, 1888, the county authorities of said county caused a bridge to be erected on one of its public roads, and that in November, 1903, while the plaintiff, with his wife and child, were driving across said bridge in a buggy drawn by two horses, the bridge broke in the middle and fell through, causing the damages for which he sued; that he was without fault, and the damages resulted from the defective construction of said bridge, which defective construction was known to the county authorities. The plaintiff offered in evidence a book. At the top of each page thereof was printed the words, "Public Road Register." This book showed a public road named, "Road leaving Buckhead and Park's Mill Road, Swords, Ga.," and described as leading from Buckhead, Park's Mill Road, via Swords, to Buckhead and Park's Mill Road, 1 1/2 miles in length, 20 feet wide, and in the second class of roads. The plaintiff also introduced the book minutes of the county commissioners of December 13, 1900, containing the following entry: "Mr. J. B. Swords appeared before the board, asking that an old road near his place be opened and made a public road. Messrs. Walker and Walton are appointed a committee to go over the ground and investigate it and report to the next meeting." Also an entry dated January 1, 1901, as follows: "The committee appointed to look into the practicability of opening a road near J. B. Swords, in Kingston district, report in favor of the same, and the report is adopted." The only oral evidence of the plaintiff necessary to be set out is as follows: The county authorities were petitioned to open the road from Swords to Park's Mill. There was a petition signed by Swords and others. The superintendent of public roads in 1900 cut the road and built the bridge in question with pine poles as sleepers. The life of a pine pole would not be longer than two years. Oak timbers would last a good many years. The road was laid out in 1899 or 1900. Walker and Walton, two of the county commissioners, laid out the road. After the accident the bridge was rebuilt, and the county authorities have worked the road since that time. The public has traveled the road ever since it was laid out. Usher Thomason owned the land through which the road runs where the bridge was built at the time the road was laid out and the bridge built. J. B. Swords went before the county commissioners and asked them to lay out the road. Before doing this, he went to Thomason and asked permission to run the road through his land. He gave the permission, and after that they went forward and made the road. The road had been worked regularly as a county road ever since it was first laid out, as other roads in that section of the county have been worked. When Swords brought the matter to the attention of the board, they appointed two of their members to go and open the road. It passed through Thomason and Swords' land, and a short space on Mrs. Knight's land. Since it has been laid out the road has been worked and used by the public as a public road. Thomason testified that he agreed to allow the county authorities to have a road, and "I yielded to it, and always permitted them to have a road." Plaintiff testified that in October, 1903, the bridge fell in while he was driving over it, causing injuries which he detailed and for which the suit was brought. He knew nothing of the defective condition of the bridge. Upon the conclusion of the evidence, the court directed a verdict for the defendant, and the plaintiff excepted. The defendant by cross-bill excepted to rulings hereinafter stated.

1. The main question involved in this case is whether or not the proved facts were such as to authorize a jury to find that this road on which the alleged injuries occurred was a public road. One method by which a public road can be established is by complying with the requirements of Civ. Code 1895, § 520 et seq. By the use of this method private property can be condemned. These sections provide a way for the citizen to have brought before the county authorities the question whether or not a public road shall be established in a particular location; and the citizen can, at least in some instances, review by certiorari the action of the county authorities in determining the question as to whether or not the road should be established. A. & W. P. R. Co. v. Redwine, 123 Ga. 736, 51 S.E. 724. Even when the owner of the land through which persons desire a public road is willing to dedicate it to the public for this purpose, and the county authorities refuse to accept the dedication and open a public road, such persons can petition the county authorities, whose duty it will be to appoint the committee as provided in Civ. Code 1895, § 520, and pass upon the question as to whether or not the new road shall be opened. The method provided in these sections for opening a new road is not the only method. If it were, a new road could never be established by prescription; but it is now the law, without question, that this can be done. Savannah Ry. Co. v. Gill, 118 Ga. 737, 45 S.E. 623; Sou. Ry. Co. v. Combs, 124 Ga. 1004, 1010, 53 S.E. 508; McCoy v. Cen. Ry. Co., 62 S.E. 297; Johnson v. State, 1 Ga.App. 195, 58 S.E. 265.

The method provided for in these sections is not an exclusive but only a cumulative one. If a person wishes to give his land to the public for a public road, and the county authorities are willing to accept it and open a public road, they can do so without incurring expense and delay in following the requirements of these sections. Under these sections no alteration or discontinuance of a road, or the opening of a new road, can be had unless application is made by some one for this purpose; and to hold that...

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