131 Ga. 378 | Ga. | 1908
(After stating the facts.)
The plaintiff’s cause of action, as declared on in this ease, was for damages' resulting from personal injuries alleged to have been sustained in consequence of the failure upon the part of the agents and employees of the. defendant company to observe the requirements of the statute, mairing it the duty of the engineer to blow the whistle of the locomotive and to check the speed of the train as required under the provision of §2222 of the Civil Code. While there was a general allegation, in specifying the acts of negligence of which the defendant was guilty, that the agents of the defendant, operating the train, failed to slacken the speed of the same before reaching the crossing, and after the time when they saw or in the exercise of ordinary care could have seen that plaintiff was in a perilous
The plaintiff relied on showing the existence of a public road or highway by user or prescription. Two theories have been advanced as the basis for the acquirement of a highway by prescription: one, that, after use for the necessary time and of the necessary character, it would be presumed that there had been an antecedent grant or dedication; the other, that the presumption which arises is that at some anterior period the road was established by competent authority. Indeed, there are two views as to prescription generally based 'on adverse possession alone for the necessary time, the one presuming a grant, the other interposing a bar from lapse of time. The theory of the presumption of a grant is that adopted in this State. Mitchell v. Rome, 49 Ga. 19 (15 Am. R. 669). And the doctrine of a presumption of a dedication has been applied to the acquisition of a street. Swift v. Lithonia, 101 Ga. 706 (29 S. E. 12); Georgia R. Co. v. Atlanta, 118 Ga. 486 (45 S. E. 256); 2 Dill. Mun. Corp. (4th ed.) §637 et seq. The other theory would apparently operate against minors as well as persons sui juris, since condemnation can be had and a road established against a minor as well as an adult. See Elliott on Roads and Streets (2d ed.), §§170, 171; Wash. Eas. (4th ed.) 191 (*118), 197 (*125), et seq. In view of our statutes as to public roads and the powers of the county authorities in regard thereto, we are of the opinion that mere user by the traveling public for 20 -years, though adverse, does not suffice to impress upon the road the character of being, a public one, unless the public authorities have accepted it directly, or exercised dominion over it, or asserted a claim to it in such manner and to such an extent as to show an acceptance by them. And, as such acceptance would impose on the county authorities duties and responsibilities connected with a public road, these acts should be such in character and extent as to clearly indicate such acceptance. Work and maintenance as a public road is the most usual evidence of recognition and assertion of dominion by the county authorities; but it is not exclusive. If 20 years user, with the requisite characteristics, as a public highway, Taises a presumption of grant or
We are aware of decisions of courts and statements of text-writers which declare that user alone by public passage will create a conclusive presumption of both dedication and acceptance, or of the creation of a road, so as to impose upon the public authorities the duty of working and repairing it. But the duties and powers of the county authorities in this State, in establishing, altering, or abolishing public roads, are quite broad, and may not coincide with the powers of the officials in the jurisdictions where these rulings have been made, or at least in some of them. At any rate, under our laws as to public roads, we are not prepared to hold that the county authorities may have a public road or highway forced upon them by mere user without their knowledge or assent, or even against their will, or after refusal to open it, upon application, as provided by law, and that indictment may be found against
In the case at bar the evidence for the plaintiff tended to show user of the road by the public for more than 20 years, she adding in general terms “as a public road.” The evidence introduced by her, however, showed that the public authorities had" never worked the road; and one of the witnesses for her testified that “this dirt road is nothing but a neighborhood road, and has never been worked by the public authorities.” The defendant showed that the road was not, and had never been, a public road; that there
It is argued that, even if this is not a public road, there is evidence of negligence; but the petition is predicated on the allegation that the plaintiff was at a public crossing. She was not injured by being struck, but by reason of her horse being frightened by the noise of the train. There were no allegations of unusual and unnecessary noises, nor other averments sufficient to authorize a recovery on any basis except that of a public-road crossing and the failure to comply with the law on that subject.
Judgment affirmed.