75 Ga. 441 | Ga. | 1885
Complainants filed a bill in Bibb superior court against the defendant, and in substance alleged that some two and one-half miles south of Macon is situated a graveyard upon the land of defendant; that the tract of land was dedicated by Agnus McAllum to the use of the public as a burying-ground, and that the public has used the same for about forty-three years. That for many years it was known as the McAllum graveyard, and afterwards as the Hughes burying-ground; that one James Hughes owned and resided upon adjacent lands, and for many years used this graveyard for burying his family, both white and
Complainants allege that defendant, Gunn, had notice of the existence of said graveyard when he purchased, and that some of his deeds contain a reservation of four- acres in a specified part of his lands, which corresponds with the location of said graveyard.
Complainants further allege, that said defendant has forbidden the use of said graveyard, and has enclosed the, same with a fence. These are, in substance, the allegations in complainants’ bill.
On September 23d, 1882, Judge’ Simmons, upon application, granted a restraining order, by the terms of which defendant was prohibited from interfering with those who desired to use said graveyard for burial purposes.
On February 5th, 1885, after hearing the argument, Judge Simmons sustained a demurrer to said bill, the same having been demurred to for want of equity, and because complainants did not’show what interest, if any, they had
By the provisions of the 2684th section of the Code, as well as by the ruling of this court, in 12 Ga., page 239, a dedication to public- use is, “ when one, being the owner of lands, consents, either expressly or by his actions, that it may be used by the public for a particular purpose.” In the case of The Recorder and Trustees of the City of Cincinnati vs. Edward White, the Supreme Court ruled, “that if the owner of land assented to its use and enjoyment for such a length of t.'me that the public accommodation and private rights might be materially affected by an interruption of the enjoyment, such use xould amount to a dedication.” See 6 Peters’ Rep., page 431. In view of these authorities, we hold that Judge Simmons should have dismissed the bill:
First, because the allegations of the bill failed to show that the land in question was dedicated to the use of the public.
Secondly, because the allegations as to the quantity of' the land and the boundary thereof are too indefinite and uncertain to establish a dedication.
As we understand this case, from the allegations in the bill, McAllum, Hughes, Ralston, Tufts and Mr. Gunn, the defendant, have owned said tract of land, and have used the same as a burial-ground, and have permitted others to so use it, but this permissory right, as exercised by others, was a mere privilege granted them, and, under the statements in the bill, did not' amount to a dedication. Therefore, the judgment of the court below is affirmed.