Savannah Beach, Tybee Island v. Drane

• Decision Date: 14 February 1949
• Docket Number: 16494.
• Citation: 52 S.E.2d 439,205 Ga. 14
• Parties: SAVANNAH BEACH, TYBEE ISLAND, et al. v. DRANE et al.
• Court: Georgia Supreme Court

52 S.E.2d 439

205 Ga. 14

SAVANNAH BEACH, TYBEE ISLAND, et al. v. DRANE et al.

No. 16494.

Supreme Court of Georgia

February 14, 1949

Rehearing Denied March 16, 1949.

Robert Drane, J. A. Myers, Carolyn Myers Schley, and J. C. Lewis Jr., filed in the Superior Court of Chatham County, Georgia an equitable petition against Savannah Beach, Tybee Island, a municipal corporation located on Tybee Island in Chatham County, John C. Wylly, and his wife, Mary C. Wylly, seeking to set aside a deed dated July 15, 1948, executed by the Town of Savannah Beach under its corporate name, Savannah Beach Tybee Island, conveying certain realty, known as 'Alley No. 1' and lying within the town, to the defendant, John C. Wylly, and also a deed from him to his wife, Mary C Wylly, under date of July 17, 1948, conveying the same property, and also praying that the municipality be enjoined from selling, conveying, or alienating in any manner whatever the said Alley No. 1, and that the defendants be enjoined from erecting any obstruction on the said street or fencing it in or building thereon or in any wise preventing the free passage of the petitioners and the public generally along and through the street, and be temporarily enjoined from conveying in any manner the said street to any person or persons and from closing or obstructing the street or putting any improvements thereon until a hearing could be had upon the merits of the petition. It was alleged that Robert Drane was the owner of the western portion of lot 24, ward 6; that J. A. Myers and Carolyn Myers Schley were the owners of lot 26, ward 6; and that J. C. Lewis Jr., was the owner of the eastern portion of lot 26, ward 6; the properties of the petitioners adjoining a public street in the Town of Savannah Beach known as Alley No. 1, approximately 75 feet in width and 200 feet, more or less, in depth, the said Alley No. 1 lying between the said lots. It was further alleged: By deed dated July 15, 1948, the Town of Savannah Beach, under its corporate name, Savannah Beach, Tybee Island, conveyed to the defendant, John C. Wylly, the said public street, known as Alley No. 1, at private sale, for a consideration of $2500, the deed being duly recorded and a copy thereof being attached to the petition as Exhibit A. By deed dated July 17, 1948, the said Wylly conveyed the said street to his wife, Mary C. Wylly, for natural love and affection, the said deed being duly recorded, and a copy thereof being attached to the petition as Exhibit B. The sale to the said Wylly was illegal, null and void, and of no effect, was an ultra vires act, and the deed pursuant thereto is void and of no effect for the reasons hereinafter stated. Prior to August, 1909, the public street known as Alley No. 1, ran diagonally from Chatham Avenue to Tybee Inlet, and lots 24 and 26 then, as now, bounded the said street on the north and south respectively. In order to have the north and south boundaries of the street run at right angles from Chatham Avenue to Tybee Inlet, the owners of the property abutting the said street, predecessors in title to the petitioners, and other property owners conveyed to the mayor and councilmen of the Town of Tybee, the then corporate name of the defendant, Savannah Beach, Tybee Island, the necessary portions of their respective properties to make the public street conform to the new arrangement; and the mayor and councilmen of the Town of Tybee conveyed to the lot owners its interest in such portion of the original street as was necessary to straighten the lot lines, the said deed being duly recorded, and a copy of said deed and plat being attached to the petition as Exhibit C and made a part thereof. The petitioners, Robert Drane and J. C. Lewis Jr., are successors in title to A. B. Palmer, as the owners of lot 24, ward 6, and the petitioners, J. A. Myers and Carolyn Myers Schley, are successors in title to their mother, Caroline McD. Myers, as owners of lot 26, ward 6. The deed between the adjoining owners of the said property and the Mayor and Councilmen of the Town of Tybee contained the restriction and provided specifically that, in consideration of the said conveyance, their respective portions of the property conveyed to the municipality as a street were conveyed 'unto the mayor and councilmen of the Town of Tybee and to their successors and assigns, as part and parcel of Alley No. 1 for public use as a street forever.' This condition imposed upon the municipality the duty to hold the said property for the use as a public street for which it was conveyed.

It was further alleged: '9. At the time of the aforesaid deed, Alley No. 1 was a street open to the public and used by the public, and since the execution of said deed the said Alley No. 1 has remained a public street, open to the public, and has been used by the public as a means of access to Tybee Inlet and there has been no abandonment of said street, which has been used by the petitioners and the public generally as a public street, and is the only means of ingress and egress available to petitioner, J. C. Lewis Jr., to Tybee Inlet, as his cottage is located on the eastern part of said lot twenty-four (24), away from the Inlet.

'10. Tybee Inlet is a large body of water and an arm of the sea and is used by petitioners and the public generally for bathing, fishing, crabbing, boating, and other uses incident to such bodies of salt water.

'11. At the time of the execution of said conveyance to the said John C. Wylly, the municipality of Savannah Beach, Tybee Island, executed an escrow agreement with the said Wylly, under the terms of which the deed and the purchase-price were to be placed in escrow for a maximum period of six (6) months, and said escrow agreement further provided that, should the sale of said street be declared illegal or should the said Wylly determine that the said sale was illegal, he should have the right to reconvey the lot to the municipality and recover back from said municipality the purchase-price.

'12. Under the terms of said escrow agreement, the said Wylly had the right to withdraw the deed and demand the purchase-price within a six months' period, and notwithstanding the time element he elected to exercise the right within two days after the execution of the agreement.

'13. Under the terms of said escrow agreement, if the sale should be declared void at any time, the said Wylly had the right to a return of the purchase money from the municipality.

'14. At the time of the conveyance to the said Wylly, the municipality owned the fee to only such part of said street as had been conveyed to it by the adjoining property owners by deed dated August, 1909, hereinbefore referred to, and had only an easement for a street to the remainder of said street, and could not convey the fee-simple title in such remainder.

'15. If the said street was to be abandoned as a street, the title thereto would revert to the adjoining property owners and said town could not sell the same for private use.

'16. After the sale of the said property to the said Wylly, petitioners herein and the other property owners objected to the sale of the street and demanded that the transaction be rescinded. As a result of said complaints, a special meeting of the Council of the Town of Savannah Beach was held on August 9, 1948, and a resolution adopted reciting the fact that objections had been interposed and expressing a doubt as to the legality of the sale. Pursuant to said resolution, the Town of Savannah Beach tendered to the said John C. Wylly and to his wife the sum of Two Thousand Five Hundred ($2500), and requested that the defendants, Wylly and his wife, reconvey the property to the municipality and accept the return of the purchase-price. Both the said Wylly and his wife refused to rescind the sale and refused to accept the return of the purchase-price and to reconvey the property to the municipality.

'17. Petitioners show that the conveyance by the defendant Savannah Beach, Tybee Island, to the said Wylly was illegal, null and void for another reason. The statute of the State of Georgia, approved March 24, 1941, Georgia Laws 1941, page 1748, under which the conveyance purports to have been made, specifically prohibits the closing or sale of any public street which has been open to the public by the municipality and used by the public, except with the approval of the qualified voters in an election held for that purpose. The sale complained of was made privately without notice, and without holding an election for said purpose.

'18. In the year 1945 your petitioners heard that the municipality was contemplating the sale of said street to a private individual, and at that time the said municipality was put on notice in writing that your petitioners objected to the sale of said street to a private individual.

'19. Petitioners show that, if said sale is allowed to stand as made, your petitioners will suffer irreparable damage, the amount of which can not be readily ascertained, and the value of their adjoining property will be greatly decreased, and the public generally will be denied access to the Inlet over said Alley No. 1 because of its closing and conveyance to private use.

'20. Your petitioners have no adequate remedy at law and have a common interest in having said street continued as a public street, and bring this action jointly in order to avoid a multiplicity of suits.

'21. The relief hereinafter prayed for lies within the equitable jurisdiction of this Honorable Court.'

The defendants, John C. Wylly and Mary C. Wylly, demurred especially as follows: 1. To the allegations of paragraph 9 of the petition, on the ground that it contains conclusions of the pleader, unsupported by allegations of facts, as to the Alley No....