Stein v. Maddox
| Decision Date | 17 April 1975 |
| Docket Number | Nos. 29522,29523,s. 29522 |
| Citation | 234 Ga. 164,215 S.E.2d 231 |
| Parties | Jack C. STEIN et al. v. John R. MADDOX et al. OLD MILTON REALTY, INC. v. Jack C. STEIN et al. |
| Court | Georgia Supreme Court |
Arnall, Golden & Gregory, H. Fred Gober, James B. Mowry, Jr., Atlanta, for Stein.
Powell, Goldstein, Fraser & Murphy, Webb, Parker, Young & Ferguson, Paul Webb, Jr., Frank Love, Jr., James C. Rawls, Atlanta, for Maddox and others.
Hilliard, Head & Chester, H. Garland Head, III, Roswell, for Old Milton Realty.
Syllabus Opinion by the Court
This case began in Fulton Superior Court with a complaint, filed by appellants Jack C. Stein, Labe B. Mell, Cecil G. Reed, Lanny King and Mrs. Ethel Wise, against Old Milton Realty, Inc., seeking monetary damages for the alleged breach of a warranty contained in the contract of sale of real property owned by plaintiffs.
A second complaint was filed several days later, realleging the original claim against Old Milton, and also naming as additional defendants the appellees Fulton County, John R. Maddox and a general partnership known as Big Creek Associates. The second complaint sought mandamus relief against the county requiring it to open Old Roswell-Duluth Road as a public road, cancellation of a 1969 quitclaim deed from the county to Maddox, and monetary damages. The trial court donsolidated the two cases and all parties moved for summary judgment.
The trial court granted the county's motion and dismissed it as a party defendant; granted the joint motion of John R. Maddox and Big Creek Associates and dismissed them as defendants; denied the motion of the plaintiffs against all defendants, except Old Milton against whom it granted judgment on the issue of liability for breach of warranty; and, finally, the trial court denied Old Milton's motion and declined to dismiss it as a defendant. If all rulings of the trial court are correct, this will leave for trial only the question of damages owed by Old Milton for the alleged breach of the contractual warranty. Plaintiffs have abandoned their claims for damages against all other defendants.
Plaintiffs filed the main appeal, seeking review of the trial court's order dismissing Maddox, Fulton County and Big Creek Associates as defendants and denying plaintiff's motion for summary judgment against these defendants. The cross-appeal is by Old Milton from the grant of partial summary judgment (as to liability) against it and the denial of its motion for summary judgment.
The plaintiffs own a tract of 15.5 acres lying north of, and contiguous to, Old Alabama Road in North Fulton County. This land was owned by Lynn F. Shufelt prior to May, 1969, when it was conveyed to Old Milton Realty, Inc. The sales contract from Old Milton in 1971, contains the following warranty which plaintiffs claim has been breached: 'Seller warrants that the property has access to Holcomb Bridge Orad as shown and designated on a plat for Old Milton Realty, Inc., dated May 19, 1969, and prepared by Kenneth L. Carlisle, Surveyor, which plat is incorporated herein, and the seller shall further warrant that said easement shall be of such width so as to permit the purchaser to comply with all the state, county and city regulations controlling the construction and maintenance of a public thoroughfare or roadway which shall service the property described in Exhibit 'A' (the property now owned by plaintiffs) and this warranty shall survive the closing of this transaction.'
The defendant partnership, Big Creek Associates, owns a tract of land lying south of plaintiffs' property and the two tracts are separated by Old Alabama Road which runs generally in an easterly-westerly direction. There is an undisputed public road known as Holcomb Bridge Road, which also runs generally in an esterly-westerly direction, and lies immediately south of, and contiguous to, the property of Big Creek Associates. Plaintiffs claim access to Holcomb bridge Road from their property by an old roadway identified as the Old Roswell-Duluth Road which extends from Old Alabama Road in a southerly direction, across the property of Big Creek Associates, to the north side of Holcomb Bridge Road.
The origin of the present dispute involves the status of the roadway identified as the Old Roswell-Duluth road. Plaintiffs claim this road as a public road in Fulton County. Defendants Big Creek Associates and John R. Maddox contend this road was never a public road but that even if it were at one time, it has been legally discontinued as a public road by Fulton County. The property of Big Creek Associates was owned by defendant Maddox until June 15, 1973.
In March, 1969, defendant Maddox, as the owner of the property, obtained from Fulton County a quitclaim deed by and through the county board of commissioners. The description contained in the quitclaim deed traces the boundaries of the Maddox property now owned by Big Creek Associates. The disputed roadway, Old Roswell-Duluth Road, is included within the boundaries of the Maddox property and was, therefore, included in the quitclaim deed description. The deed recites that '(t)he purpose of this quitclaim deed is to release all right, title, interest and property which was previously utilized by (Fulton County) for road purposes prior to the relocation of Holcomb Bridge Road to its present location.' The quitclaim deed recites a consideration of $1.00 and other valuable consideration. The $1.00 consideration has never been paid.
At the time the Commissioners of Fulton County authorized the quitclaim deed and it was executed and delivered to defendant Maddox (the predecessor in title to Big Creek Associates), the property now owned by plaintiffs was owned by Lynn F. Shufelt who is not a party to this litigation. Shufelt conveyed the property to Old Milton in May, 1969, and plaintiffs subsequently acquired it in 1971. Sometime thereafter plaintiffs entered into negotiations with Fulton County to open up and improve the old Roswell-Duluth roadway for access from their property to Holcomb Bridge Road, across the property previously owned by Maddox and now owned by Big Creek Associates. Apparently, plaintiffs sought to have Fulton County either condemn Old Roswell-Duluth Road as a public road or condemn additional land of Big Creek Associates along Old Roswell-Duluth Road to widen and improve it.
These negotiations never ripened to fruition, and on November 6, 1972, the City of Roswell annexed into the city land which included the properties of plaintiffs and the defendant Big Creek Associates and the Old Roswell-Duluth Road. Thereafter, Fulton County notified plaintiffs that the county was prohibited by a constitutional amendment (Art. XI, § I, Par. I, Georgia Constitution, Ga.L.1951, p. 828; 1953, N.D., p. 144; and 1966, p. 924) from performing and road work within the area annexed by the City of Roswell. 1 If this is correct, mandamus will not lie as there would be no duty on the part of Fulton County to improve the road. However, we do not reach this issue as it is unnecessary for decision in this case.
We turn first to the mandamus relief sought by plaintiffs against Fulton County. Code Ann. § 64-102 provides that a resident of a county may bring an action for mandamus to require his county government to maintain a public road in passable condition. See Fountain v. Bryan, 229 Ga. 120(2),189 S.E.2d 400 (1972). 2
There appears to be a genuine issue as to whether the Old Roswell-Duluth Road is a public road. Fulton County has never held documentary title to this road and we cannot determine on summary judgment in this case its exact width or whether it is a public or private roadway. 3 See Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627.
Nevertheless, even if we assume that Old Roswell-Duluth Road was public road prior to the execution and delivery of the quitclaim deed from Fulton County to John R. Maddox, plaintiffs cannot succeed in obtaining the mandamus relief sought against Fulton County. The uncontradicted evidence in the record on appeal shows that the Old Roswell-Duluth Road is open and passable. This conclusion is substantiated by plaintiffs' answers to the interrogatories of defendants Maddox and Big Creek Associates in which plaintiffs agree that a car may be driven over the road. Plaintiffs' answers to these interrogatories also effectively concede that the only interference of their use of the Old Roswell-Duluth Road is not from any defect or obstruction in the road, but rather, 'because the Maddox people and Big Creek Associates have denied it is a public road, and despite orders . . . by the Fulton County Commission to condemn the additional right-of-way for which (plaintiffs) are willing to pay, the county has not done so because of the cloud on the title.'
As we read the record, plaintiffs procuded no evidence on the summary judgment motions to prove Old Roswell-Duluth Road is in need of repair to make it passable. Code Ann. § 81A-156(e) provides, in pertinent part, An application of this section to the present case requires that we affirm the trial court's ruling which granted summary judgment to Fulton County on plaintiffs' claim for mandamus. See, also, Summer-Minter & Associates, Inc. et al. v. Giordano et al., 231 Ga. 601, 203 S.E.2d 173.
We next examine whether plaintiff's claim to cancel the quitclaim deed from Fulton County to John R. Maddox is authorized because Fulton County failed to notify plaintiffs' predecessor in title that the county was considering a...
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McIntosh County v. Fisher
...merely that the convenience of a private individual might be subserved." 121 Ga. at p. 407, 49 S.E. at p. 316. Accord, Stein v. Maddox, 234 Ga. 164, 215 S.E.2d 231 (1975); Griffith v. C & E Builders, 231 Ga. 255(2), 200 S.E.2d 874 (1973); Dunlap v. Tift, 209 Ga. 201, 71 S.E.2d 237 In the pr......