160 Ga. 350 | Ga. | 1925
On January 3, 1920, A. C. Walters purchased a certain tract of land containing 6.14 acres from Messrs. Ash-ford, Hawkins, and Spalding. In the deed the land was described as follows: “All that tract or parcel of land lying and being in the City of Atlanta, and being in land lots fifty-three (53) and fifty-four (54) of the seventeenth (17) district of originally Henrj^, now Fulton County, Georgia, described as follows: beginning on the east side of North Boulevard at the district line between the seventeenth (17) and fourteenth (14) district of said county, and running thence east along said district line seven hundred and ninety-four and eight tenths (794.8) feet to an iron pipe at the' southwestern line of the right-of-way of the Southern Railway, thence northwesterly along the southwestern line of said right-of-way thirty-seven and one half (37-%) feet from and parallel with the center line of the old Atlanta and Charlotte Air-Line Railway
The plaintiff, Walters, asked an injunction to prevent the defendants from closing up the north prong of Virginia Avenue so as to obstruct and prevent his use of this means of ingress and egress to his property as it existed at the time he purchased it. The employees of the defendants had blocked the entrances to the north prong, both at Virginia Avenue and at North Boulevard, with substantial fences which absolutely debarred the use of the north prong, in pursuance of an ordinance passed by the mayor and council of the City of Atlanta, abandoning it and providing a wider exit by means of the south prong of Virginia Avenue. Upon the hearing the trial judge granted an interlocutory injunction as prayed by the plaintiff, and the defendants excepted to this judgment. They contend that the judge should have- refused the injunction, because: (1) The plaintiff did not acquire, and'does not own, any private easement in that part of Virginia Avenue
It will be observed that the property abutted that of the railway company and the street-car line, and therefore was especially valuable for manufacturing or storage purposes on account of its accessibility. The purchase-price was $20,000. It appears that at the time of the purchase what is now Virginia Avenue (and it was then called Virginia Avenue though located outside the limits of the City of Atlanta) was open and had been used by the public generally as a highway for several years. It further appears that Virginia Avenue entered North Boulevard by two prongs, one known as the north and the other as the south prong, and that the north prong was something over 150 feet nearer to Tenth Street (which runs in an easterly and westerly direction) than the south
In East Atlanta Land Co. v. Mower, 138 Ga. 380 (75 S. E. 418), the easement claimed, instead of being one provided for purposes of ingress and egress, was the use of certain parks which had been made one of the bases of the sale and purchase. As to this, Mr. Justice Hill, delivering the opinion of the court, after quoting section 4171 of the Code, says: “But whether it is a case of dedication to a public or to a private use, the plaintiffs are asserting their right to an easement in the parks in controversy; and the result is the same to the plaintiffs [that is, whether the use is public or private], so far as their right to an easement in the parks is concerned. In the view we take of the case, if the lots were sold with reference to the plats which contained a delineation of the parks, and the original purchasers bought with reference thereto, the seller is estopped from setting up a claim adverse to the right of the private individuals, or their assigns, who so bought, or to the right of the public to use the parks, if there has been a dedication and acceptance.” Quoting from 3 Dill. Mun. Cor. (5th ed.) § 1107, Mr. Justice Hill proceeds: “A consummated intent on the
It may be conceded that the plaintiff, A. C. Walters, did not acquire and does not own a private easement in the north part of Virginia Avenue which the defendants are seeking to close, but it does not follow from that that he is not entitled to derive the
What we have already said practically rules on the second
A vendor is estopped to claim any interest in land which at the time of his sale was represented as an easement which naturally contributed to the accessibility of . the land being sold, and contributed to increase its value, regardless of the action of the authorities properly charged with the power to open and .close public highways.
The third headnote requires no elaboration.
Judgment affirmed.