Stanfield v. Brewton, 26683

• Decision Date: 27 September 1971
• Docket Number: No. 26683,26683
• Citation: 228 Ga. 92,184 S.E.2d 352
• Parties: J. M. STANFIELD, Jr. v. J. E. BREWTON et al.
• Court: Georgia Supreme Court

Page 352

184 S.E.2d 352

228 Ga. 92

J. M. STANFIELD, Jr. v. J. E. BREWTON et al.

No. 26683.

Supreme Court of Georgia.

Sept. 27, 1971.

Syllabus by the Court

1. (a) Where the owners of a tract of land subdivide it into lots, record a map or plat showing such lots, with designated streets and a public park, and sell lots with reference to such map or plat, the owners are presumed to have irrevocably dedicated such streets and park for the use of all of the lot owners in the subdivision.

(b) The owners of lots in the subdivision have an easement in these public areas whether or not there has been an acceptance of the dedication by public authorities or the public generally.

(c) After such irrevocable dedication, subsequent owners of lots in the subdivision are estopped to deny the dedication in the same manner that the creators of the subdivision are estopped.

2. The failure to rule on a plea to the jurisdiction is harmless error where the plea is plainly without merit.

3. In order to obtain a new trial because of the absence of a defendant and his counsel at the trial, it must be shown that the party was without fault, and that he had a good defense to the action.

Cowart & Cowart, Dan S. Cowart, C. L. Cowart, Glennville, for appellant.

Robert J. Duffy, Savannah, for appellees.

MOBLEY, Presiding Justice.

J. E. Brewton, the owner of a lot in the Stafford Subdivision, on behalf of himself and other lot owners similarly situated, brought an action for injunction against B. L. Odum and other named lot owners in the subdivision, alleging that the defendants are interfering with the unrestricted use of streets and a public park dedicated by the creators of the subdivision for the use of all of the lot owners. Verdict was returned in favor of the plaintiffs, and judgment was entered permanently enjoining the defendants from interfering with or restricting the plaintiff and other lot owners in their rightful and lawful use of the public park and streets, as shown on the recorded plat of the subdivision.

J. M. Stanfield, Jr., one of the defendants, filed a motion for new trial, which was denied, and he appeals from this judgment.

In addition to the usual general grounds, the motion contained two special grounds. The first was that at the time of the trial the appellant's plea to the jurisdiction had not been ruled on. The second special ground was that the appellant was not present at the trial because his attorney had misinformed him as to the date of the trial, and such attorney has since absconded and his whereabouts is unknown to the appellant.

1. It is asserted by the appellant that the verdict is contrary to the evidence because the evidence was presented in support of another case.

The transcript shows that at the beginning of the trial the judge called a case by a different name and number than the case now on appeal. Counsel for the appellees, in his opening remarks to the jury, informed them that the case on trial was that of J. E. Brewton, and others similarly situated, in a subdivision known as the Stafford Subdivision.

The transcript of the hearing on the motion for new trial contains a discussion between the judge, counsel for the appellant, and counsel for the appellees in regard to the confusion as to the two cases. From this discussion it appears that both cases were class actions by owners of lots in the Stafford Subdivision against the same defendants. It was agreed between counsel for the appellant and counsel for the appellees that it was the Brewton case that was tried.

There is no merit in the contention that there was no evidence to support the verdict because the evidence was in another case.

(a) None of the defendants appeared when the case was tried. The evidence offered for the plaintiffs (appellees) showed: In 1946, W. I. Stafford, Sr., and W. I. Stafford, Jr., subdivided property owned by them in McIntosh County. A plat of this subdivision was recorded and lots were sold with reference to the plat. The plat had designated thereon lots, streets, and an area marked 'public park' fronting on the Sapelo River. Owners of lots in the subdivision used the streets and park for a number of years, until the defendants interfered with their use by placing structures and obstructions in the park.

Where the owners of a tract of land subdivide it into lots, record a map or plat showing such lots, with designated streets and a public park, and sell lots with reference to such map or plat, the owners are presumed to have irrevocably dedicated such streets and park for the use of all of the lot owners in the subdivision. Schreck v. Blun, 131 Ga. 489, 62 S.E. 705; East Atlanta Land Co. v. Mower, 138 Ga. 380, 75 S.E. 418; Ashford v. Walters, 160 Ga. 350, 353, 127 S.E. 758; Tietjen v. Meldrim, 169 Ga. 678(9), 151 S.E. 349; Caffey v. Parris, 186 Ga. 303(1), 197 S.E. 898; Thompson v. Hutchins, 207 Ga. 226(1-a), 60 S.E.2d 455; Young v. Sweetbriar, 222 Ga. 262, 266, 149 S.E.2d 474.

(b) The owners of lots in the subdivision have an easement in these public areas whether or not there has ever been an acceptance of the dedication by public authorities or the public generally. Ford v. Harris, 95 Ga. 97, 100, 22 S.E. 144; Westbrook v. Comer, 197 Ga. 433(3), 29 S.E.2d 574; Owens Hardware Co. v. Walters, 210 Ga. 321(1), 80 S.E.2d 285.

(c) A deed was introduced in evidence, executed in 1953, from the Staffords to Byrom M. Fitzgerald, which conveyed all of the property in the subdivision with the exception of numerous designated lots which had previously been sold by the Staffords. This deed referred to the plat of the subdivision as recorded in the clerk's office, and stated that it was made 'subject to the rights and privileges granted the purchasers of the lots above enumerated and excepted as is set out in the deeds conveying said lots to said purchasers.'

Byrom M. Fitzgerald is the predecessor in title of some of the lot owners claiming an easement in the streets and park in the Stafford Subdivision. It is asserted by the appellant that Fitzgerald reserved to himself the right to use the park and waterfront, and that the lot owners deriving their title through him have no right to use these areas.

One of the deeds executed by Fitzgerald introduced in evidence contains the following language: 'For the consideration aforesaid, the parties of the second part, their heirs, assigns and legal representatives, shall also have the following rights and easements, to-wit: A non-commercial right to the water front on Sapelo River adjacent to the park as shown on said map or plat; the right of ingress and egress, and the right to the use of all septic tanks, sewers and drains adjacent to said lot herein conveyed, now or hereafter...