227 Ga. 436 | Ga. | 1971
This case was originally carried to the Court of Appeals and by that court transferred to this court on the theory that the case was one involving equity and title to land. A part of the area rezoned and upon which the defendant-developers propose to erect the apartment complex includes an area lying along the margin of rear wharf lots, 7, 8 and 9 west of Bull Street and known today and for more than 100 years as "Factors’ Walk.” Appellants contend that Factors’ Walk in the area here in dispute includes an area originally laid out by the founders of the Town of Savannah as a part of the common property of all the lot holders of said town and that it is a part of the common originally designated as‘"The Strand” or "The Bay,” which area, according to Acts of the Colonial Assembly of Georgia, as will be more fully set forth hereinafter, could only be aliened or conveyed away by an Act of the legislature. They supported their contention in this regard by attaching as an exhibit to their motion for a summary judgment a copy of a plat certified by John Bethune, Surveyor General of Georgia, on January 4, 1832, as being a true copy of the plan of the Town of Savannah as taken from the original file in his office, which plan appears from other writing thereon to have been prepared on February 5, 1770, by Thomas Shruder, Deputy Surveyor General, pursuant to an application made to him on January 8, 1770, by a committee of the "Commons House of Assembly of this Province” from a resurvey made of the Strand,
The 1770 Act above referred to provides, "That the plan annexed to this Act shall from henceforth be held, taken for and deemed the true plan of the said Town and Common of Savannah including the several wharf lots under the bank or bluff of said town and common.” Examination of the enrolled original of said Act now of file in the Department of Archives and History of the State of Georgia does not disclose that there is any such plan annexed thereto. Whether the original of the plan purportedly prepared by Thomas Shruder in 1770, the copy of which was introduced as an exhibit to the affidavit of Lilla M. Hawes, is in fact the plan referred to by the aforesaid Act of the Colonial Assembly is a question of fact for the determination of a jury. If said plat is in fact what it purports to be, it would seem to be admissible as an ancient document under the provisions of Code § 38-312 and the weight and credit to be given thereto would be for the jury. Bunger v. Grimm, 142 Ga. 448 (4) (83 SE 200, AC 1916 C 173);
It is the contention of the plaintiffs-appellants that this plat, or map, establishes the limits of the Common embracing an area between the town lots and the bluff abutting the river front of the City of Savannah and that it shows such Common thereon denominated as "The Strand” as extending in a northerly direction a distance of 208 feet perpendicularly to the north line of lots 1-5 of Wilmington Tything. Plaintiffs contend that this area is a part of the original Common of the Town of Savannah, by the Act of the Colonial Assembly approved May 1, 1760, and subsequently confirmed by the Act of the General Assembly of this State approved February 10, 1787 (Marbury & Crawford, pp. 121-122), and could only be alienated by an Act of the General Assembly. It is certainly true that prior to the Act approved August 11, 1927 (Ga L. 1927, p. 1537), none of "the Common appertaining to said town . . . including all the squares, streets, lanes, and passages, described in the plan of said town in the Surveyor General’s office, and [which] have been heretofore accustomed or made use of by the inhabitants of said town, shall be and continue the common property of the lot holders in said town, and shall not be aliened or granted away for any purpose, whatsoever, than by an Act of the General Assembly.” Marbury & Crawford, p. 117; Mayor & Aldermen of the City of Savannah v. Wilson & Gibson, 49 Ga. 476 (1).
The appellees contend, however, that the decision of the Superior Court of Chatham County rendered in 1888 in the case of Clinch v. Mayor & Aldermen of the City of Savannah confirmed in the defendant-developers’ predecessors in title to lots 7, 8 and 9 title to the area here in dispute known as Factors’ Walk. The certified copy of the transcript of the record in that case included in the record in this case transmitted to this court as an exhibit to the motion of the defendant-developers for a summary judgment shows that that suit was an action by the then owners of rear wharf lots 7, 8 and 9 against the Mayor & Aldermen of the City of Savannah to enjoin the city from removing obstructions placed by the then owners or their tenants in the area known as Factors’ Walk. The plaintiffs alleged that they held title to wharf lots 7, 8 and 9 west of Bull Street, together with all the improvements
Under the Acts of the Colonial Assembly above referred to, as continued in force and effect by the Act of February 10, 1787, the Superior Court of Chatham County, in 1888, had no jurisdiction to render a decree having the effect of confirming in private parties
The pleadings and the evidence in this case present the question as to where the boundary thus fixed by the 1888 decree is. As we view the evidence, this is a question not capable of ascertainment on the state of the record which was before the trial court and which is before this court. This is true because the court in the Clinch case decreed that the plaintiffs have fee simple title to the wharf lots 7, 8 and 9 west of Bull Street "southward to the
Under all the circumstances of this case, we think it was a jury question as to just exactly where the line purportedly fixed by the 1888 decree now lies, and that the real dispute between the parties in this regard must be settled by the submission of additional evidence to a jury to enable this question to be ascertained.
Prior to the rezoning of wharf lots 7, 8 and 9 and the exchange of properties herein complained of, said wharf lots consisted of seven separate parcels designated as front wharf lots 7, 8 and 9 and rear wharf lots 7, 8 and 9, the front portions thereof being separated by a parcel of land approximately 30 feet in width and 300 feet in length running parallel to the river on which was located a portion of River Street. This segment of River Street is shown by the plats and maps admitted in evidence as being out of alignment with the portions of River Street to the east and west thereof. The city proposed the realignment of River Street, and to that end agreed to convey to the developers the tract whereon River Street traversed wharf lots 7, 8 and 9 in exchange for portions of front wharf lots 7 and 8, it appearing that the city already owned a portion of front wharf lot 9 necessary to be used to effect the realignment of River Street which was sought to be accomplished. The appellants attack the conveyance by the city of the parcel of land comprising River Street traversing wharf lots 7, 8 and 9 to the defendant developers contending that the same was in excess of the powers of the city and that the conveyance is null and void.
The city had authority to grant a license to the defendant developers to erect a bridge or passageway over the street so long as the same is erected so as not to interfere with the reasonable and ordinary use of the street by the public for passage. Whether or not the requirement that no part of any structure so erected across the street would be closer than 20 feet vertically from the surface of the street was a reasonable restriction upon such right would seem to be a matter within the discretion of the municipal authorities. Such a right being merely the grant of a license it necessarily was granted subject to the inherent right of the city to revoke the same upon reasonable notice at any time and to require the developers to remove any such structure. Simon v. City of Atlanta, 67 Ga. 618 (44 ASR 739); City Council of Augusta v. Burum & Co., 93 Ga. 68 (19 SE 820, 26 LRA 340); City of Atlanta v. Holliday, 96 Ga. 546 (23 SE 509).
This court has repeatedly held that the notice requirements embodied in zoning ordinances enacted pursuant to law must be strictly complied with in any rezoning action taken by the governing authorities of a municipality. Jennings v. Suggs, 180 Ga. 141 (178 SE 282); Atlantic Refining Co. v. Spears, 214 Ga. 126 (103 SE2d 547). Accordingly, where the zoning ordinance here required publication of the notice of the zoning hearing to be made at least five days before the date of the hearing and where the record shows without dispute that the publication was had only four days before the hearing the requirement of the ordinance was not met. Likewise, the ordinance requires that written notice of a rezoning hearing be given to adjoining property owners and to the owners of property located directly across a public way. Emma Adler
Appellants contend that the action of the Savannah Zoning Board of Appeals in rezoning the property in question or in granting a special use permit was void because two members of the board were nonresidents of the City of Savannah at the time such action was taken. While the allegations of the complaint in this regard were denied by members of the board in their joint answer with the mayor and aldermen, the record shows, as pointed out by the appellant, that member Troy A. Bouy and member Charles L. Stewart, Jr., in response to requests for admission served on them individually by the attorney for the plaintiffs, admitted that they were not, at the time of their appointment, or at the time of the action by the Savannah Zoning Board of Appeals, residents of the City of Savannah, but that they resided outside the city limits thereof. A certified copy of § 38-164 of the City Code of Savannah which is a part of the record in this case shows that one of its requirements is that "The Board of Appeals shall consist of five members residing within the city.” Thus, it appears without dispute that the two named members of the board were disqualified under the terms of the zoning ordinance to serve on the Zoning Board of Appeals. However, they were de facto members of such board and their acts in that capacity were valid until their ineligi
The contention of the plaintiffs with respect to the anticipated pollution of the Savannah River or increase in such pollution caused by erection by defendant developers of the facilities in question partakes of the nature of an action to abate or restrain a public nuisance. It does not appear that the plaintiffs will sustain any special damages in which the public in general do not participate, and they, therefore, have no cause for relief on this ground. Code § 72-103.
The remaining contentions of appellant either relate to matters not likely to re-occur on another trial or are without merit. For the reasons set forth in Divisions 1 and 4 of this opinion, the trial court erred in granting to the defendant a summary judgment. The court did not err in refusing to grant a summary judgment to the plaintiff. For the reasons set forth in the first and fourth divisions of this opinion, the judgment granting a summary judgment to the defendants must be reversed.
Judgment affirmed in part; reversed in part.