Smith v. State of Ga.Smith v. State of Ga.
This is the fourth appearance of this case in this court. See
State of Ga. v. Bruce,
On remand the trial court charged the jury that in determining whether the “mean high water mark” had advanced so that the easements in question had been lost by erosion or avulsion, they were to consider that the mean high water line indicates that “approximately half the time the tides rose above this line.” See, Smith v. Bruce, supra, at 140. The jury returned answers to thirty-one special interrogatories, finding as to each lot in question that the “average high water line of the Atlantic Ocean” had not advanced to the eastern edge of Beach Drive, the center line of Beach Drive, the western edge of Beach Drive or beyond the western edge of Beach Drive. The trial court then entered a judgment that none of the easements to the hard beach had been lost by erosion.
(1) (a) Appellants Smith and Rowland Hills Corporation enumerate as error the trial court’s failure to grant their motions for directed verdict on the issue of erosion. They also argue that the trial court erred in failing to define “mean high water mark” to the jury.
At trial appellants offered testimony of several East Beach lot owners to show that the ocean had, at varying times over the years, washed beyond the western edge of Beach Drive and even onto some of the East Beach lots. Appellants contend this evidence shows that, as a matter of law, the easements in the hard beach were lost by erosion. Thus, appellants claim title to the more than 26 acres of land which has accreted since the “mean high water mark” allegedly advanced beyond the western boundary of Beach Drive.
In Borax Consolidated, supra, the Supreme Court adopted the definition of “mean high tide” given by the U. S. Coast and Geodetic Survey as the standard for determining tidal boundaries of land received under a federal grant. Noting that the range of the tide at any given point may vary daily, the Court found that “mean high water at any place is the average height of all the high waters at that place over a considerable period of time [which] from theoretical considerations of an astronomical character... should be a... period of 18.6 years.” Borax at 26-27.
It is significant to note at the outset of this discussion that “in tide terminology the words ‘water’ and ‘tide’ are synonymous. High tide and high water, mean high tide, and mean high water, etc. have exactly the same technical meaning.” 1
The United States Coast and Geodetic Survey bears the primary responsibility for measuring tides in this country. It maintains tide-measuring stations all along the United States coastlines and “publishes tide tables for the entire world which predict, more than a year in advance of publication, both the time and height of high and low tides.” 2 Generally “a mechanical recording instrument is used which continuously traces on paper the height of the water at any instant.” If properly installed, these automatic tide gauges are extremely accurate. 3
“The variations in the major tide-producing forces are a result of changes in the moon’s phases, declination to the earth, distance from
“Twice a month, when the astronomic forces are working in conjunction with each other, the maximum range, or spring tides, occur; the high tide is higher than average and the low tide is lower... [t]wice a month the minimum range or neap tides, occur, because the astronomic forces are working in opposition to each other; the high tide is lower than the average, and the low tide is higher.” 5 See Borax, supra, at 23. The U. S. Coast and Geodetic Survey averages all of the high tides, including the spring and neap tides, to determine the mean high tide or water. Under this determination “[t]he mean high water at any place is the elevation of the mean level of high water determined, either directly or indirectly, by averaging the height of all the high waters at that place over a period of 19 years.” 6 (Emphasis supplied.) The U. S. Coast and Geodetic Survey calculates the 18.6 year cycle “as a 19 year cycle as a matter of practicality and convenience.” 7 Thus, the mean high tide or water at any point along the coast is the mean of all the high tides at that point during a 19-year period. The U. S. Coast and Geodetic publications, reflecting the computations of the mean high tides, are heavily relied on by surveyors in determining tidal boundaries. 8 As noted in one U. S. Coast and Geodetic Survey publication, “ [boundaries determined by the course of the tides involve two engineering aspects: a vertical one, predicated on the height reached by the tide during its vertical rise and fall, and constituting a tidal plane or datum . . . and a
We adopt the definition of mean high tide or water given by the U. S. Coast and Geodetic Survey and hold that the mean high water at any given point along the coast is the elevation of the mean level of high water calculated by averaging the height of all the high waters at that place over a period of 19 years. We further hold that the mean high water mark is to be determined by projecting the tidal plane of the mean high water to the point of its intersection with the shore.
(b) The evidence to be submitted to a jury when exceptions are made to the examiner’s findings under Code Ann. § 60-304 shall “include only the evidence reported by the examiner; evidence, if any, which was improperly excluded by the examiner or not reported; and any newly discovered evidence ”
Bruce v. Rowland Hills Corp.,
Given our holding in this division, we find appellant Smith’s and appellant Rowland Hills’ other enumerations of error to be without merit.
(2) At trial the State and Glynn County stipulated that if the jury found that the easements in question had been lost by erosion, the State and County would not claim that the accreted land had been impliedly dedicated to the public. The trial court did not instruct the jury to determine whether the land had been finally dedicated to the public should they answer all the special interrogatories in the negative. Once the jury returned the special interrogatories, the trial court, apparently relying on our decision in
Lines v. State of Ga.,
The State and Glynn County appeal the grant of the motions for directed verdict. The State alleges that the trial court erred in concluding that, as a matter of law, there had not been an acceptance of the offer of dedication by either the county or the general public. We agree and reverse.
Code Ann. § 81A-150 provides, in part: “if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.”
To prove a dedication of land to public use, there must be an offer, either express or implied, by the owner of the land, and an acceptance, either express or implied, by the appropriate public authorities or by the general public.
Ross v. Hall County Commrs.,
Code Ann. § 85-410 provides: “if the owner of lands, either expressly or by his acts, shall dedicate the same to public use, and the same shall be so used for such a length of time that the public accommodation or private rights might be materially affected by an interruption of the enjoyment, he may not afterwards appropriate it to private purposes.”
“ ‘Where the owner of a tract of land subdivides it into lots and records a map or plat showing such lots, with designated streets, and sells lots with reference to such map or plat, the owner will be presumed to have
expressly dedicated
the streets designated on the map to the public.’ ” (Emphasis supplied.)
Ross v. Hall County,
supra, at 311;
Young v. Sweetbriar, Inc.,
Relying on these propositions of law, we held in Smith v. Bruce, supra, at 141-143, that the recording of the 1914 J. B. High Subdivision plat and the sale of lots in the East Beach Subdivision with reference to the High plat by the Bruces completed the offer of dedication to the public, not only of the streets and alleys of the subdivision, but also of “the beach area, including the hard beach as far as legally possible, and the area of the soft beach between the mean high water line and the street designated as Beach Drive.” Under the authorities, this offer of dedication was express.
We further concluded in that case that “[assuming the land area involved has not been heretofore destroyed through erosion by the westward migration of the ocean, we cannot say as a matter of law from the evidence introduced that the disputed area [offered] has been accepted by the public and, therefore, finally dedicated as a public beach or recreational area. The findings of fact [by the examiner] excepted to in this regard must be determined by a jury under the provisions of the Land Registration Law, Code Ann. § 60-304.” Smith v. Bruce, supra, at 146.
The State concedes that there has not been an express acceptance of the Bruces’ offer of dedication by any public authority. Rather, the State’s position is that certain acts taken by the county in conjunction with acts taken by the general public amount to an implied acceptance of the offer of dedication.
The Georgia cases recognizing an implied acceptance by the general public of an express offer of dedication fall primarily into three categories: dedications of cemeteries, streets and parks. These cases uniformly indicate that acceptance by the public for public use is sufficient to complete the dedication without acceptance by the appropriate public authorities. See,
Chatham Motorcycle Club v. Blount,
The majority rule appears to be that the acceptance of an express offer to dedicate property may be shown by public use of the property for a period of time sufficient to indicate that the public is acting on the basis of a claimed right resulting from the dedicatory acts by the owner. 11 McQuillin 760, Municipal Corporations, Dedication, § 33.50; 26 CJS Dedication, § 37. “Acceptance by the public need not be immediate, but may be made when public necessity or convenience arises. As a corollary to this proposition, it follows that it is not necessary that the public use the entire property dedicated. Any public use of a part of the property, indicating a purpose to accept the gift, fixes the public right to the whole.”
East Atlanta Land Co. v. Mower,
The Georgia cases have not required that the public use the land for any specific period of time in order to impliedly accept the offer of dedication; rather the cases have indicated that the use must simply be over a period of time long enough to indicate an intent or purpose to accept the offer.
East Atlanta Land Co.,
supra;
Haslerig v. Watson,
supra. Once it is shown that public use has been made of the land “for such a length of time that the public accommodation and private rights might be materially affected by the interruption of the enjoyment, the dedication is complete.”
Savannah Beach, Tybee Island v. Drane,
The length of time of public use becomes critical only when its proof is necessary in order to establish the owner’s dedicatory intent, as in the case of proving an implied dedication. See
Lines v. State of Ga.,
In Bartlett, supra, the Supreme Court of Minnesota found that the use of a bog by six duckhunters during one duckhunting season was sufficient to constitute acceptance of an express offer of
Proof that a public authority has impliedly accepted an offer of dedication may be made by showing that the authority has exercised control over the property, made improvements or maintained its upkeep. See
Ross v. Hall County Commrs.,
In the case before us the State offered evidence to show that Glynn County has sporadically stationed lifeguards on the disputed stretch of beach since the 1950’s, although no lifeguard has been stationed there at county expense since 1974; that the County has placed between four and eight trash receptacles on the disputed beach which it regularly empties; and that the County has, from time to time, placed signs on the beach warning swimmers of hazardous conditions. The State also introduced testimony from two non-residents of the island who stated that they had used the beach in question “as members of the general public” since 1914. There was also testimony to show that the Girl Scouts and a local religious organization had regularly used the beach for outings.
We are aware of no Georgia authority, and the parties have cited none to us, which recognizes the sufficiency of public user necessary to accept an express offer of dedication of beach property.
Other jurisdictions, however, have dealt with this problem. See Phillips v. Laguna Beach Co., 211P. 225 (Sup. Ct. Cal. 1922); Greenco Corp. v. City of Virginia Beach,
As we stated in
Smith v. Bruce,
supra, we cannot say, as a matter
The record indicates that the trial court, in directing the verdict, relied on
Lines v. State of Ga.,
However, public uses of a beach which are insufficient to prove that the owner of the property intended to dedicate it to the public may be sufficient to constitute an implied acceptance of the property where an express offer of dedication has been made. This is a question for the trier of fact.
Notes
“The Luttes Case — Locating the Boundary of the Seashore,” 12 Baylor L. Review 141, 151 (1960).
Id. at 144.
Id. at 145.
“The Use and Legal Significance of the Mean High Water Line in Coastal Boundary Mapping,” 53 N.C. L. Review, 186-273, 196-197 (1974).
“Fluctuating Shorelines and Tidal Boundaries: An Unresolved Problem,” 6 San Diego L. Review, 447, 456 (1969).
Id., 451, 461.
12 Baylor L. Review at 150.
6 San Diego L. Review 458.
6 San Diego L. Review at 450, citing, A. Shalowitz, Shore and Sea Boundaries, 89 (Coast and Geodetic Survey Pub. No. 10-1, 1962).
12 Baylor L. Review at 147.
For other cases which have rejected the notion that the wash of the waves marks the highest point reached by the tide see, Eichelberger v. Mills Land & Water Co.,