30 S.E.2d 627 | Ga. | 1944
1. A highway may come into existence by dedication.
2. The proof need not show an express dedication; it may under certain circumstances be implied.
3. An intention to dedicate property to public use is essential to a dedication.
4. The mere fact that the public uses the property of a private individual is not necessarily inconsistent with the retention of dominion by the owner.
5. When an implied dedication is claimed, the acts relied on to establish the dedication must be such as to indicate clearly and satisfactorily a purpose on the part of the owner to abandon his personal dominion over the property, and to devote the same to a definite public use.
6. An intent on the part of the owner to dedicate must be manifested by the conduct of the owner from the facts and circumstances of the particular case, based upon the acts of the owner, and not upon what is secreted in his heart.
7. While an intention to dedicate need not be shown by an express declaration to that effect, but under certain circumstances may be inferred from an acquiescence by the owner in the use of his property by the public, such acquiescence is in the nature of an estoppel in pais, and implies a knowledge on the part of the owner of the claim by the public to the right to appropriate his property to public use. *706
8. An acquiescence can not 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.
11. As a general rule, before a highway can be established by prescription it must appear that the general public, under a claim of right, and not by mere permission of the owner, used some defined way, without interruption or without substantial change, for a period of twenty years or more.
Passing by for the moment a discussion as to whether there was such use by the county authorities as to imply an acceptance, the case as to dedication must fall, for the reason that, under the foregoing *709
authorities, no sufficient facts or circumstances were proved to show a purpose on the part of the owner to abandon his own personal dominion over the property, none to show a clear assent, nor any acts of the owner to show an intention to dedicate. But, it may be argued, an intention to dedicate may be inferred, as this court said in Healey v. Atlanta, supra, from anacquiescence by the owner in the use of his property by the public. Acquiescence, however, means a tacit consent to acts or conditions, and implies a knowledge of those things which are acquiesced in. One can not acquiesce in a wrong while ignorant that it has been committed, and the knowledge must be of facts. Pence v. Langdon,
In view of the absence of any proof of dedication, or of any act by the owner, or condition which would imply it, either by acquiescence or otherwise, we need not measure the testimony to ascertain whether it is sufficient to show acceptance. As to that, however, in Healey v. Atlanta, supra, it was ruled: "In every case of an *710
implied dedication it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift. The mere fact that the public uses the property of a private individual is not necessarily inconsistent with the retention of dominion by the owner." See also, Ellis v. Hazlehurst,
Nor did he successfully carry the burden of showing that the premises here involved had become part of a public road by prescription. In Southern Railway Co. v. Combs,
In Savannah, Fla. Western Ry. Co. v. Gill,
Formerly, one Cary owned much of the acreage in this immediate territory, lived thereon, and used a narrow strip as a lane from his cow pasture, which lay beyond the lot afterwards acquired by Dunaway. When McWilliams purchased six and a half acres of the property lying west of the Dunaway lot and reaching to the Gun Club road, he sold off lots to several persons who built dwellings thereon, and a private road was opened from the Gun Club road to what was afterwards the Dunaway property. This afterwards became known, according to the testimony offered in behalf of Dunaway, as Mack Drive, stopping at Dunaway's property. According to the testimony of Windsor, this road, and therefore Mack Drive, did not stop there, but went directly in front of and across what Dunaway claims to be his front yard. Dunaway testified that he bought his place on July 25, 1927, and has lived there ever since, and that at that time there was no road crossing his yard. Other witnesses, to wit, McConnell, McWillians, Mrs. Dunaway, McDaniel, Mrs. Sizemore, Kirbo, and Prince, testified to the same effect. The evidence in behalf of the defendant is not sufficient to show that a public road was established by prescription over that portion of land lying immediately in front of the Dunaway dwelling. Measured by the principles announced in the foregoing authorities, *714 the testimony fails to show a prescriptive title. That various persons had from time to time passed over Dunaway's yard in trucks, and perhaps other vehicles, was shown; but resolving every conflict in the evidence in favor of the prevailing party, and giving effect to all the reasonable deductions therefrom, there was no continuous, uninterrupted, and adverse use by the public, nor a continued maintenance of the so-called roadway by the public authorities for the required length of time, such as would be sufficient to submerge the owner's title into a prescriptive right on the part of the public.
The motion for new trial contains certain special grounds relating to the judge's charge, but these need not be considered. Error is also assigned on the amended decree. But since the decree must fall when the verdict is set aside, that alleged error need not be passed upon. The judge erred in refusing to grant a new trial because of a want of evidence to support the verdict.
Judgment reversed. All the Justices concur.