Ford v. Harris

Nov 26, 1894
Reporters:
,
Before:
Lumpkin
Lumpkin, Justice.

The material facts are stated by the reporter.

1. Upon the principle ruled in Bayard v. Hargrove et al., 45 Ga. 342, which was approved in Harrison, ex’r, v. Augusta Factory, 73 Ga. 447, we have no hesitation in concluding, that, by virtue of the sale made by A. L. Harris, trustee, and Julia E. Harris, in January, 1882, a right of way over the strip of land designated in the plat as “Grove avenue” passed to every purchaser at that sale, and that the sellers of the lots were thereby estopped either from closing up the strip, or maintaining an obstruction in it existing ‍​‌​‌​​‌​​‌​​‌​‌​‌​‌​​​‌​​​​​‌‌​‌​‌‌​​​‌​‌​‌‌‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌​‌​‌‌‌​​​‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌​‌‍in it at the time of the sale. There was probably no dedication, in the technical sense of that word, of the strip in question to the *101public as a street; but undoubtedly the purchasers of the lots acquired an easement in the use of the strip as a way to and from their property. Properly speaking, there can be no dedication to private uses, but only to the public use. However, if the owner of land lays out streets and alleys and afterwards sells lots bounding upon them, while this does not constitute them public streets, unless the public shall in some way accept and adopt them as such, yet the purchasers of those lots acquire the right to have the strips designated as streets remain open for their use as a perpetual easement over the ground for ingress to and egress from their property. Wash. Easements and Serv. (4th ad.) 203, 204. The mere fact that the purchasers did not immediately begin to exercise their right to use the strip as a way, or that they delayed doing so for a ‍​‌​‌​​‌​​‌​​‌​‌​‌​‌​​​‌​​​​​‌‌​‌​‌‌​​​‌​‌​‌‌‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌​‌​‌‌‌​​​‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌​‌‍number of years, would not occasion a loss of the easement. Their right to it being perfect and complete, they could not be deprived of it except by express abandonment, or by such conduct on their part as would be tantamount to the same. We do not, of course, mean to say that a right of this kind might not become stale by long lapse of time, or by nonuser under circumstances manifesting that the parties at interest had no intention ever to claim or use the right. Under the facts of this case, the successors in title of the original purchasers of the lots succeeded to their rights in the easement, and it passed from one to the other as appurtenant to the lots. The case of Bissell v. N. Y. C. R. R. Co., 23 N. Y. 63, will throw some light on the case in hand.

2. We also think that one in possession and holding under bond for titles from a successor in title of the original purchaser, also had the right to enjoy this easement and to institute proper proceedings to establish ‍​‌​‌​​‌​​‌​​‌​‌​‌​‌​​​‌​​​​​‌‌​‌​‌‌​​​‌​‌​‌‌‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌​‌​‌‌‌​​​‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌​‌‍ail‘d secure that right. His vendor would in no sense be injured thereby; but on the contrary, would be bene*102fited, because, in the nature of things, the opening of Grove avenue would necessarily enhance the value of the property, and thus make the security for the purchase money better. This, view is consistent with the ruling in the case of Fulton County v. Amorous, 89 Ga. 614, especially as it appears, in the present case, that the plaintiff’s vendor was a party plaintiff to the action, and, of course, assenting.to it. The case of Jones et al. v. Napier, 93 Ga. 582, 20 S. E. Rep. 41, rests upon an entirely different principle from the case at bar. The language used in the opinion filed in the Napier case, pointing out the distinction in principle between that case and the case of Amorous, is applicable here: While one holding land under a bond for titles may, consistently with the rights of his vendor, do anything to protect the property from waste or enhance its value, he should not be permitted to do anything which will prejudice the rights of the vendor or injuriously affect his security.

3-4. We think the plaintiffs’ ‍​‌​‌​​‌​​‌​​‌​‌​‌​‌​​​‌​​​​​‌‌​‌​‌‌​​​‌​‌​‌‌‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌​‌​‌‌‌​​​‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌​‌‍declaration, as originally filed, made a case entitling the plaintiffs to a decree adjudicating their right, as against the defendants, to the easement in question. The court sustained a general demurrer to the petition, hut in the order provided that the plaintiffs have leave to amend so as to proceed for damages or for specific performance. No exception was taken to this action of the court, but the plaintiffs undertook to comply with the terms of the order by amending their declaration and praying that the defendants be decreed to specifically perform the contract by opening the avenue. The difficulty was, the defendants had made no contract to “ open the avenue,” nor to anything else capable of enforcement by a decree for specific performance. Therefore, the plaintiffs entirely failed by their proof to make out a case.

As above stated, however, in our opinion, the petition *103as originally filed was good as against a general demurrer ; at least, to the extent of supporting a verdict and decree establishing the right of the plaintiffs to the free and unobstructed use of Grove avenue ‍​‌​‌​​‌​​‌​​‌​‌​‌​‌​​​‌​​​​​‌‌​‌​‌‌​​​‌​‌​‌‌‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌​‌​‌‌‌​​​‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌​‌‍as a way to and from their property. . We therefore think the general demurrer should have beén overruled; and although, as no exception to the action by the court was taken, no question‘with reference to this matter was properly presented to us for determination, yet as the case, upon the-facts presented, appears- to be meritorious, we have given direction that‘the-plaintiffs be granted leave to so amend their petition as to obtain the reliéf above indicated, or such other relief as may seem appropriate upon further investigation and development of the case.

Judgment affirmed, with direction.