Swift v. Mayor, etc., of Lithonia

• Decision Date: 09 July 1897
• Citation: 29 S.E. 12,101 Ga. 706
• Parties: SWIFT et al. v. MAYOR, ETC., OF LITHONIA.
• Court: Georgia Supreme Court

29 S.E. 12

101 Ga. 706

SWIFT et al. v. MAYOR, ETC., OF LITHONIA.

Supreme Court of Georgia

July 9, 1897

Syllabus by the Court.

1. Where a dedication of his property to a public use is relied upon to defeat the claim of one holding the legal title, the acts relied upon to establish such dedication must be such as clearly showed a purpose on the part of the owner to abandon his own personal dominion over such property, and to devote the same to a definite public use.

2. Except in so far as the premises sued for may include portions of a public road not claimed by the defendant under an alleged dedication by the plaintiff's ancestor, the title of the plaintiff was established; and the defense relied upon, to the effect that the premises sued for had been, by the ancestor of the plaintiff, dedicated to the town for use as a public highway, was not sustained, and a general verdict in favor of the defendant was contrary to law, and upon a motion for a new trial, should have been set aside.

Error from superior court, De Kalb county; John C. Hart, Judge.

Action by E. G. Swift and others against the mayor and others of Lithonia to recover land. From a judgment for defendants plaintiffs bring error. Reversed.

Candler & Thomson, for plaintiffs in error.

R. W Milner, for defendants in error.

SIMMONS C.J.

1. Where a dedication of his property to a public use is relied upon to defeat the claim of one holding the legal title to the property, the acts relied upon to establish such dedication must be such as clearly showed a purpose on the part of the owner to abandon his personal dominion over such property, and to devote the same to a definite public use. "Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts showing an assent that the property should be so used and enjoyed." Collins v. Mayor, etc., 69 Ga. 542; City of Indianapolis v. Kingsbury, 101 Ind. 200; Manderschid v. City of Dubuque, 29 Iowa 73; Tinges v. Mayor, etc., 51 Md. 600; Mayor, etc v. White, 62 Md. 362; City of Detroit v. Detroit & M. R. Co., 23 Mich. 173; Rozell v. Andrews, 103 N.Y. 150, 8 N.E. 513; Civ. Code, § 3591. "An intent on the part of the owner to dedicate is absolutely essential, and, unless such intention can be found in the facts and circumstances of the particular case, no dedication exists. *** The intention may also be established by parol evidence of acts or declarations which show an assent on the part of the owner of the land that the land should be used for public purposes. To deprive the proprietor of his land, the intent to dedicate must clearly or satisfactorily appear. Such intent will be presumed against the owner where it appears that the easement in the street or property has been used and enjoyed by the public for a period corresponding with the statutory limitation of real actions. But where there is no other evidence against the owner to support the dedication but the mere fact of such user, so that the right claimed by the public is purely prescriptive, it is essential, to maintain it, that the user to enjoyment should be adverse, that it is with claim of right, and uninterrupted and exclusive for the requisite length of time; but, where the question is as to an intent on the part of the owner to dedicate, user by the public for a period less than that limiting real actions is important, as evidence of such intention, and as one of the facts from which it may be inferred." 2 Dill. Mun. Corp. (4th Ed.) § 636 et seq. In order to constitute a dedication of land to public uses, an intention on the part of the owner to abandon the use of the land to the public must be...