Smith v. Bruce
| Decision Date | 04 April 1978 |
| Docket Number | 33181 and 33183,Nos. 33175,33182,s. 33175 |
| Citation | 244 S.E.2d 559,241 Ga. 133 |
| Parties | Nellie Varner SMITH v. Charles D. BRUCE et al. ROWLAND HILLS CORPORATION et al. v. Charles D. BRUCE et al. STATE of Georgia et al. v. Charles D. BRUCE et al. |
| Court | Georgia Supreme Court |
Moreton Rolleston, Jr., Atlanta, for appellant (Case no. 33175).
Reid W. Harris, Brunswick, for appellants (Case nos. 33181 and 33183).
Arthur K. Bolton, Atty. Gen., Don A. Langham, First Asst. Atty. Gen., Patricia T. Barmeyer, Asst. Atty. Gen., Atlanta, Terry L. Readdick, Brunswick, for appellants (Case no. 33182).
Nightingale, Liles & Dennard, B. N. Nightingale, Lissner & Killian, J. J. Lissner, Jr., Reid W. Harris, Brunswick, Lucian J. Endicott, St. Simons Island, Taylor, Bishop & Lee, James A. Bishop, Brunswick, Arthur K. Bolton, Atty. Gen., Atlanta, Patricia T. Barmeyer, Asst. Atty. Gen., Moreton Rolleston, Jr., Atlanta, Thomas J. Dickey, Brunswick, for appellees.
Lucian D. Endicott, Brunswick, amicus curiae.
Marvin J. Highsmith, pro se.
Edward C. Bruce, Charles D. Bruce, Lucile Bruce Brown and Catherine H. Bruce filed their petition in the Superior Court of Glynn County, Georgia, to have certain described lands registered under the provisions of The Land Registration Law (Code Ann. § 60-101, et seq.), claiming title thereto in fee simple.
The original complaint claimed that there were no owners or occupants of the adjoining land because the tract sought to be registered was bounded on the east by the Atlantic Ocean, on the north and south by other lands owned by applicants and on the west by the easterly line of Dixon Drive as shown on a plat. However, the owners of lots lying west of and abutting on Dixon Drive were named and identified as defendants, as was Glynn County, a political subdivision of the State of Georgia and others similarly situated.
The parcel sought to be registered contains 26.4 acres, more or less, and is described according to a plat of survey made by John H. Ringling dated March 16, 1970, recorded in Deed Book 15-J, page 688, of the public records of Glynn County, Georgia, bounded northeasterly by the southerly line of Ninth Street extending eastwardly, southeast by the high water mark of the Atlantic Ocean, southwest by the northerly line of First Street extended eastwardly, and northwesterly by the easterly line of Dixon Drive. Applicants claim title to this tract by a complete chain of title from the State or other original sources and attach an abstract to their complaint.
T. J. Dickey, Jr. was named as examiner by the court and he immediately qualified.
Rowland Hills Corporation and other parties filed a joint answer denying the pertinent parts of the application and as lot owners west of Dixon Drive denying that the applicants were entitled to the relief sought. Some respondents claimed title to the questioned lands by gradual accretion, asking for a judgment establishing the property as belonging to the public by virtue of Code Ann. § 85-410; an easement running with the lands of defendants and others on East Beach similarly situated; and prayed for related relief.
Defendant Nellie Varner Smith counterclaimed, alleging that she was the owner of Lots Nos. 13 and 14 in Block 10, East Beach Subdivision, in which she claimed title to part of the lands east of Lots 13 and 14, and 8 by prior deed. She also claimed a private way ten feet in width over a portion of the lands claimed by the applicants from Lot 13 to the Atlantic Ocean; title to the lands east of her lots by gradual accretion; and a private way ten feet in width leading from Lot 8 to the Atlantic Ocean.
United Theater Enterprises, Inc., R. Beverly Irwin and Ethel S. Minter also counterclaimed similar rights to those claimed by Mrs. Smith, but with respect to Lots Nos. 11, 12, 13 and 184 in Block 12 of East Beach and claiming they had received a covenant from the common grantor of the parties that no construction of any building of any description would ever be permitted to be erected between the beach lots in said block and the Atlantic Ocean.
Robert L. Garges counterclaimed, alleging title to Lot 12, Block 10, a covenant against construction east of Dixon Drive and similar relief claimed by the other defendants.
Universal Insurers, Inc., with respect to Lots Nos. 11 and 12 in Block 8; John Roberts with respect to Lot No. 11 in Block 4; J. Weldon Weir, Lot 12, Block 6; R. William Martin and T. Dozier Martin, Lot 11, Block 10, all claim similar relief by accretion, a private way, etc.
Certain motions to strike and dismiss were also filed by defendants.
The examiner filed a preliminary report, correcting and modifying the applicants' abstract in some respects, and ultimately filed a "final report" attaching his conclusions of fact and of law.
Thereafter, the State of Georgia filed a motion to intervene in the case which was denied, appealed to this court and reversed. See, State of Ga. v. Bruce, et al, 231 Ga. 783, 204 S.E.2d 106 (1974).
Following the State's intervention, hearings were held by the examiner during which the State offered oral testimony and documents in support of its claim that it is an abutting property owner on the seaward side and that the people of the State of Georgia, by continued and protracted use of the area known as East Beach, obtained a right in said area which the people through the State of Georgia now seek to protect. The State specifically sought a decree that the right of the people of the State of Georgia to use the area of East Beach continue uninterfered with and unobstructed.
The State amended its answer, filing a cross-petition in its sovereign capacity as trustee for and guardian and representative of the people of the State of Georgia, in which it sought to have the parcel registered as property of the State of Georgia, or in the alternative, the State sought to have the parcel declared as subject to a right of use in the people of this State.
In its amendment to Count 1, the State contended that in the year 1914 the entire general area, including property lying immediately west of the property involved, was subdivided by a map prepared in 1914 by J. B. High. A plat thereof was recorded in the public records of Glynn County, Georgia, and a copy of the plat was attached to the counterclaim. The area between the mean high water line and the low water line was the property of the State of Georgia at the time of that survey and has remained the property of the State until this date. 1 Further, since the creation of East Beach Subdivision, the area east of the subdivision has been built up by accretion adding beach land to Beach Drive east of the center line. The State claims that the area platted as Beach Drive (Dixon Drive) and east thereof has been dedicated to the public, and is therefore property of the State of Georgia. Further, it alleges that the public has a right in and to the same by custom or "usage."
On February 25, 1977, the examiner filed an "Amendment to the Final Report." The substance of the examiner's preliminary and final reports as supplemented approved the original moving parties' application for title, subject to certain specified restrictive covenants and easements across their lands and denying that the public has a right to use the disputed property.
All parties filed exceptions to the examiner's report and the State filed an additional motion in the Superior Court to disqualify the examiner. All respondents except the State, Glynn County, Nellie Varner Smith and Mary Endicott filed a motion for summary judgment for the reason that the evidence conclusively showed the title to the lands sought to be registered in them and other respondents adjacent to Dixon Drive by accretion following loss of the subject lands by erosion.
The Superior Court conducted a hearing on the exceptions of the various parties to the examiner's conclusions of law as well as motions for summary judgment which had been filed by certain of the lot owners claiming ownership of the disputed property pursuant to the decision of this court in State v. Ashmore, supra.
The trial court denied all exceptions to the conclusions of law of all respondents, including those of the State and the county, but granted all exceptions as to conclusions of law by the petitioners. The order specifically held that respondent Nellie Varner Smith acquired no title to any of the disputed property and determined as a matter of law that one of the plats introduced and identified as a 1931 Torras Plat did not establish the high water mark as being the same as the east side of Dixon Drive.
All motions for summary judgment were denied and an order was entered refusing the State's motion to disqualify the examiner. The court also entered a separate order in regard to the costs to be paid in the case prior to appeal. The respondent Nellie Varner Smith individually appeals to this court in Case No. 33175; Rowland Hills Corporation, et al in Case No. 33183; and the State of Georgia and Glynn County in Case No. 33182. Rowland Hills Corporation, et al. has also filed a cross-appeal in Case No. 33181. All of these will be considered together.
The State of Georgia and Glynn County enumerate error as:
(a) The trial examiner's refusal to disqualify himself, and the trial court's refusal to disqualify him even though he acted as legal counsel for applicants in another matter during the pendency of this action;
(b) The court's conclusion, as a matter of law, that the plaintiffs acquired title in fee simple without encumbrances permitting use of the disputed beach and access thereto by members of the public;
(c) The court's failure to conclude, as a matter of law, that the land was expressly dedicated to the public for certain purposes by the three plats and by express statements of the plaintiffs' predecessor in title, which dedication has been accepted by the public;
(d) The court's ignoring...
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