Waldrep v. Hall County

• Decision Date: 06 May 1971
• Docket Number: No. 26436,26436
• Citation: 181 S.E.2d 833,227 Ga. 554
• Parties: R. Aubrey WALDREP v. HALL COUNTY.
• Court: Georgia Supreme Court

Page 833

181 S.E.2d 833

227 Ga. 554

R. Aubrey WALDREP v. HALL COUNTY.

No. 26436.

Supreme Court of Georgia.

May 6, 1971.

Syllabus by the Court

The trial court did not err in granting the temporary injunction prohibiting the defendant from interfering with the use and maintenance of a road contended by the plaintiff to be a public road.

Hall County filed a complaint in which it sought an injunction to prohibit the defendant from blocking a described road, interfering with the use of said road by the public and interfering with the plaintiff's maintaining said road. The defendant filed four defenses. The first defense maintained that the complaint failed to state a claim, the second defense denied the material allegations of the plaintiff's complaint other than residence, the third defense denied the existence of the road across his property and the fourth defense denied the plaintiff or the public had acquired any easement across the property for road purposes. After hearing evidence, including affidavits, the trial court entered an interlocutory injunction.

The court's decree was as follows: 'The plaintiff in the above suit seeks a temporary and permanent injunction, enjoining the defendant from interfering with the use and maintenance of the public road sometimes referred to as Beverely Road and described by the pleadings and evidence in this case. The court has considered extensive evidence submitted by testimony of witnesses appearing on two hearings in the case and by affidavit and documentary evidence. The court has considered the following authorities:

'If the owner of lands, either expressly or by his acts, shall dedicate the same to public use, and the same shall be so used for such a length of time that the public accommodation or private rights might be materially affected by an interruption of the enjoyment, he may not afterwards appropriate it to private purposes. Code § 85-410.

"The only essential elements of a valid dedication of lands to the public are: (1) an intention of the owner to dedicate to a public use, and (2) an acceptance thereof by the public. Tift v. Golden Hardware Co., 204 Ga. 654, 655(4) (51 S.E.2d 435).' Chatham Motorcycle Club v. Blount, 214 Ga. 770, 775 (107 S.E.2d 806). 'There may exist, however, an implied dedication; but whether express or implied, an intention on the part of the owner to dedicate his property to the public use must be shown * * * When an implied dedication is claimed, the facts relied on must be such as to clearly indicate a purpose on the part of the owner to abandon his personal dominion over the property and to devote it to a definite public use.' Dunaway v. Windsor, 197 Ga. 705, 707 (30 S.E.2d 627). However, 'The mere use of one's property by a small portion of the public, even for an extended period of time, will not amount to a dedication of the property to a public use, unless it appears clearly that there was an intention to dedicate, and that this dedication was accepted by the public authorities.' Healey v. City of Atlanta, 125 Ga. 736, 738 (54 S.E. 749); Chatham Motorcycle Club v. Blount, supra. Hasty v. Wilson, 223 Ga. 739(5) (158 S.E.2d 915).

'8. An acquiescence cannot be effective to deprive the owner of his property when the claimed acquiescence amounts to no more than a failure to protest in isolated instances when some members of the public travel over his land.

'9. The mere use of one's property by a small portion of the public, even for an extended period of time, is not sufficient to authorize an inference that the property has been dedicated to a public use, unless it clearly appears that there was an intention to dedicate, and that this dedication was accepted by the public authorities, either in express terms or by implication resulting from the maintenance of a way public in its nature.

'10. An occasional road-working of the property by the public authorities, there being no other evidence of maintenance, is not of itself sufficient to create the presumption of an intention to dedicate. The use and maintenance must be of the character, and for the length of time, sufficient to create a presumptive right of the public therein. Dunaway v. Windsor, 197 Ga. 705(8)(9) (10) (30 S.E.2d 627).

'(a) Though a right of private way over the land of another may arise from prescription by seven years' uninterrupted use through improved lands (Code Section 85-1401), a mere passing by the public through an alley in a city, belonging to the owner of the adjacent property, and kept open by him for his own use and that of his tenants, will not ripen into a right to continue such passing by any lapse of time, no repairs having been made, and no other acts being done so as to give notice to the owner of a claim of right to use the alley as distinguished from a mere license or permission. Cook v. Gammon, 93 Ga. 298 (20 S.E. 332); Nassar v. Salter, 213 Ga. 253 (98 S.E.2d 557). Use by members of the public alone is insufficient to acquire prescriptive title. It must be kept open and in repair. First Christian Church (at Macon) v. Realty Investment Co., 180 Ga. 35 (178 S.E. 303). Tribble v. Mayor and Aldermen of the City of Forsyth, et al, 225 Ga. 204(1)(a) (167 S.E.2d 142).

'In Adams v. Richmond County, 193 Ga. 42, 48 (17 S.E.2d 184), it was held that: '(A) frequent way of showing such acceptance by the public in the case of a road or street is to prove that the proper authorities assumed control over such road or street, as by having it worked, graded, or paved.' Furthermore, as held in Mayor &c. of Macon v. Franklin, 12 Ga. 239, 244(3): '(T)here is no particular form of making a dedication. It may be done in writing, or by parol; or it may be inferred from his acts, or implied, in certain cases, from long use. A grant is not necessary to create it.' Moon v. City of Conyers, 222 Ga. 526 (150 S.E.2d 873).

'Dedication and use by the public would not of themselves make a street or alley a public way so as to charge the municipality with the burden of repairs and maintenance and liability for injuries sustained by reason of the defective condition of such way, unless the dedication is accepted by the proper municipal officials or there is evidence of recognition of such way as a public one. Maddox, et al. v. Willis, et al., 205 Ga. 596(4) (54 S.E.2d 632).

'The evidence submitted indicates that the defendant had a deed prepared conveying an easement or right of way to the county, that he delivered this, that it apparently was never expressly accepted nor recorded, that nevertheless the plaintiff employed a surveyor (Henry Grady Jarrard) to prepare a plat of plaintiff's property and that said plat showed the road in question as an unnamed street. Homer Glenn Whitmire testified that he had traveled this road by car since the 1930's, 'a lot in the 1940's and up into the 1950's,' that the county had scraped and worked on the road since the 1940's and into the 1950's, that there was a bridge built by the county in the 1940's. Otis Stringer testified that as road maintenance supervisor for the county he worked the road, widened it, built a bridge in 1949, that he worked it twice a year, that the public used it. Richard Folger, present county engineer, testified that the county worked the road in 1970, that there is a road there, that people traveled it, that ...