148 Ga. 317 | Ga. | 1918
In 1870 Dr. .Louis A. Ealligant owned a tract of land near the then southern border of the City of Savannah. This tract of land was surveyed into city lots. On October 20, 1870, Dr. Ealligant conveyed to the City of Savannah the streets and lanes through said tract, as shown by the map of Southville, by which name he designated the tract. Among the streets conveyed by Dr. Ealligant to the city was “western half of Price street, 25 feet and 6 in. wide.” The deed to the city was duly recorded on November 9, 1870. In 1872 Dr. Ealligant conveyed lot No. '92 of the Southville division to Hagar Barnes (then Crittendon). This deed gave the dimensions of lot 92 as fronting thirty feet on Lamar avenue, with “the extension of Price street as the eastern boundary thereof.” Price street was not then opened and used as a street. .In 1872 Hagar Barnes enclosed' lot No. 92 and the tract lying immediately east thereof and designated upon the map as Price street. She has been in the peaceable, undisputed, open, and notorious possession thereof from that date until this. In 1899 the City of Savannah concluded to open Price street, but it did not use the land conveyed for that purpose by Dr. Ealligant, but on the contrary purchased land about thirty-five feet eastward, and used that for the purpose of opening Price street. Hagar Barnes purchased the strip immediately east of the tract conveyed by Dr. Ealligant to the city and lying between said tract and Price street as actually opened up. In December, 1915, the City of Savannah
The case presents two controlling questions. The first involves a construction of the deed from Dr. Falligant to the city. The deed recites the offer of Dr. Falligant to the Mayor and Aldermen of the City of Savannah “to make to them a deed of dedication of certain streets and parts of streets,” being parts of certain described tracts of land, upon condition that the city would pay to him a certain sum of money and complete certain work of grading the streets at the expense of the city. It further recites the reference of the offer to the committee on streets and lanes, and the recommendation of this committee “that Dr. Falliganfs offer be accepted, viz.: Dr. Falligant to give a full and complete deed to the city of all the streets and lanes named in his communication,” upon the consideration therein expressed. The deed then undertakes to convey, according to a map attached, “all those portions
The second question is: If the interest or estate conveyed by Dr. Falligant to the city was an easement, may such an easement be destroyed by abandonment or adverse user? Counsel for the plaintiff in error insist that inasmuch as prescription does not run against a municipal corporation in regard to land held 'for the benefit of the public, where the land, has been offered to a municipality for use as a public street and the offer to dedicate has been accepted and the dedication thereby made complete, no adverse possession of the street by a private individual can ripen into a prescriptive title; and that the doctrine of abandonment does not apply. It is declared by the Civil Code, § 3644, that “An easement may be lost by abandonment, or forfeited by non-user,, if the abandonment or non-user continue, for a term sufficient to raise the presumption of release or abandonment.” This section has been, held to apply to a municipal corporation as well as to an individual, in two cases. Kelsoe v. Oglethorpe, 120 Ga. 951 (3), 954 (48 S. E. 366, 102 Am. St. R. 138); Mayor etc. of Savannah v. Bartow Investment Co., 137 Ga. 198, 204 (72 S. E. 1095). It is said that this ruling was unnecessary in the cases cited. A careful reading of the cases would seem to bear out this assertion; but upon consideration we are satisfied that the rule announced is the true.one, although there are decisions elsewhere to the contrary. It .is of course settled by our decisions that prescription will not run against a municipality with respect to lands held by it for public purposes. It is also decided, in at least three cases, that where a municipality owns a mere easement, prescription will not run against it. See City Council of Augusta v. Burum, 93 Ga. 68 (19 S. E. 820, 26 L. R. A. 340); Langley v. Augusta, 118 Ga. 590 (13), 601 (45 S. E. 486, 98 Am. St. R. 133); Wade v. Cornelia, 136 Ga. 89, 90 (70 S. E. 880). While prescription does
Judgment affirmed.