169 Ga. 678 | Ga. | 1930
(After stating the foregoing facts.)
The plaintiffs filed a general demurrer to the answer of the defendants as a whole. A portion of the answer was proper and good in substance. In these circumstances the court did not err in overruling the general demurrer to the whole answer. Blaylock v. Hackel, 164 Ga. 257 (138 S. E. 333); Beasley v. Anderson, 167 Ga. 470 (146 S. E. 22).
But we are of the opinion that some of the special grounds of demurrer were well taken. In paragraph 2 of their answer the defendants admit that the deeds to the lots owned by Mrs. Meldrim bound and describe the same by reference to the map of said subdivision; but in the last two sections of said paragraph they aver that said description and boundaries were for the sake of convenience only, that in fact there have never been any streets, ways, or boulevards where defendant owns her lots, and that said
In the 7th paragraph of the second amendment to their answer the defendants aver that the abandonment of the alleged ways occurred by the actual abandonment thereof, and by the failure of said company to open the same to public use, and by failure of the plaintiffs to open the same to public use, and by failure of the public or any governmental authority to accept and use said ways; and defendants aver that such abandonment occurred a sufficiently long time ago to raise a presumption of abandonment and loss by nonuser; and that said abandonment occurred by the failure of the plaintiffs or their predecessors in title to open said ways. The plaintiffs demurred specially to this paragraph of the answer, upon the ground that it set up no valid defense and was insufficient in law and equity. They further demurred specially to the following allegation in said paragraph: “that said defendants aver that said abandonment occurred a sufficiently long time ago to raise the presumption of abandonment and loss by nonuser,” because the same is a conclusion without facts on which to base it. They likewise specially demurred to the averment in said paragraph of the answer contained in the words, “the abandonment of the alleged ways occurred by the actual abandonment thereof,” in that the same is a conclusion without facts on which to base it, and does not show how said actual abandonment occurred, and how such abandonment was effected and by whom. The. trial judge overruled these grounds of special demurrer. In this we are of the opinion that he erred. The mere fact that the plaintiffs did not immediately begin to exercise their right to use these streets, or that
After giving to the jury the instruction set out in the 4th ground of the motion for new trial, which was favorable to the right of the plaintiffs to recover, the judge added the qualification, “unless the right to use the ways or easements was abandoned or lost by nonuser.” After giving in charge a principle of law requested by plaintiffs, which is set out in the 5tli ground of the motion for new trial, the judge again added a similar qualification. Again, after giving the principle requested by plaintiffs, which is set out in the 7th ground of the motion for new trial, the trial judge qualified the same by adding: “but they are not estopped from averring-and proving that the easement has been lost by abandonment or nonuser.” Again, the trial judge, after giving in charge to the jury, at the request of the plaintiffs, the principle of law set out in the 8th ground of the motion for new trial, added thereto the qualification set out in the ground of the motion last above dealt with. Again, after giving the instruction set out in the 10th ground of the motion, the judge qualified the same by adding: “but I charge you further that an easement, that is a right to use a street, may be lost by abandonment or forfeited by nonuser.” To these qualifications of the instructions set out in the foregoing grounds of their motion the plaintiffs excepted. Among the grounds of exception are: (a) These qualifications are contrary to law. (b) An easement of way resting upon a grant thereof can not
These qualifying instructions were given by the court upon the theory that the right of the plaintiffs, who owned lots abutting upon the streets in this subdivision, and who had acquired all rights of the former owner who had laid out this subdivision into streets and lots, was an easement, which would be lost by nonuser or abandonment. These qualifying instructions were inaccurate, and tended to confuse and mislead the jury. Where an easement of way is acquired by mere user, the doctrine of extinction by mere nonuser may in reason apply; but where such easement is acquired by grant, the doctrine of extinction by nonuser should not apply. Where an easement has been acquired by grant, mere nonuser, without further evidence of an intent to abandon it, will not constitute an abandonment. Mayor &c. of Savannah v. Barnes, 148 Ga. 317 (96 S. E. 635, 9 A. L. R. 419); A. & W. P. R. Co. v. Atlanta, 156 Ga. 351 (4) (119 S. E. 713). The authorities in other jurisdictions are fairly agreed that where a right of way or other easement is created by grant, deed, or reservation, no duty is thereby cast upon the owner of the dominant estate thus created to make use thereof or enjoy the same as a condition to the right to retain his interest therein, and that the mere nonuser of such an easement for -any length of time will not extinguish the same. 10 Am. & Eng. Enc. Law (3d ed.) 436; 1 A. L. R. 884, note 1, and cit. The meré nonuser of an easement created by deed, for a period however long, will not amount to an abandonment. 19 C. J. 943 (§151) (3). It follows that the court erred in giving to the jury the qualifications to the instructions embraced in the foregoing-grounds of the motion for new trial, such qualifications being to the effect that the right of the plaintiffs to use the ways or easements claimed by them might be lost by nonuser or abandonment alone.
This error was not cured by a later instruction that “An easement acquired by grant can not be lost by mere nonuser, without
The court, at the request of counsel for the plaintiffs, gave to the jury the instruction set out in the 6th ground of their motion for new trial; but added this qualification: “unless the right to object has been lost.” To this qualification the plaintiffs except upon the grounds: (a) that the court did not instruct the jury how this right could be lost; (b) that the instruction contains the inference that the right could be lost in the sense of divesting or destroying a property right without aid of limitation or estoppel; (c) that the charge contained a correct principle of law applicable under the pleadings, and should have been given without the qualification. We do not think that the court erred in giving this qualification, for any of the reasons assigned.
In the 9th ground the plaintiffs except to a charge in which the contentions of the defendants are stated. The grounds of exception are fully set out in the statement of facts, and need not be repeated. The court did not instruct the jury that they should find for the defendants if these contentions were found by them to be true. So the first ground of exception is not well taken. The plaintiffs further except to the statement of the contentions of the defendants, upon the grounds that (a) the burden was on the de
In the 11th ground the plaintiffs except to the refusal of the court to give in charge to the jury, when duly requested in writing, the following instruction: “If the owner of this tract of land divided it into lots, which it sold to various purchasers, and in its deeds of conveyance to such purchasers described these lots as abutting on a street, the owner leaving a space for such street, the owner and any one claiming a portion of any such street are estopped to deny that such street is in fact a street.” This instruction was applicable and pertinent under the pleadings and evidence in this ease. When a grantor sells lots of land, and in his deeds describes them as bounded by streets, not expressly mentioned in the deeds, but shown upon a plat therein referred to as laid out in a subdivision of the grantor’s land, he is estopped to deny the grantees’ right to use the streets delineated in such plat. Ford v. Harris, supra; Schreck v. Blun, 131 Ga. 489 (62 S. E. 705); Wimpey v. Smart, 137 Ga. 325 (73 S. E. 586); Gibson v. Gross, 143 Ga. 104 (84 S. E. 373). By parity of reasoning those claiming under such conveyances are estopped from denying the existence of the streets so delineated upon the plat of the subdivision and given as boundaries of lots acquired by these and others from the grantor or those claiming under him. All persons claiming under such grantor are forever estopped to deny their existence. 19 C. J. 928 (§ 127) b.
Plaintiffs requested the court to give in charge to the jury the instruction set out in the 12th ground of their motion for new trial. This the trial judge refused to do. We do not think that this instruction as a whole contained a correct statement of law. The purpose of the request was to have the court give to the jury the principle of law embodied in section 3725 of the Civil Code. A comparison of the requested instruction with this section will show that the request did not, as a whole, contain an accurate statement of the law embraced in such section. Eor instance,
We are of the opinion that the court should have given in charge to the jury the principles of law embraced in the requests set out in the 13th and 14th grounds of the motion. The instructions requested contained correct principles of law applicable under the facts of this case, as we shall hereafter undertake to show.
We do not think that the court erred in refusing to give the requested instructions set out in the 15th and 16th grounds of the motion. We do not think that these instructions contain correct and accurate principles of law; and for this reason the trial judge did not err in refusing to give them in charge.
The most important question in this case is, whether the right of way over the streets in this subdivision, acquired by the purchasers of these lots from the owners thereof, can be lost by abandonment; if so, under what circumstances will such abandonment arise; and in case of abandonment, to whom does the abandoned estate revert ? When the owner of these lands laid them out into streets and lots, which were designated by numbers on a map or plat, and sold the lots by such numbers and as bounded by such streets, expressly referring in the deeds conveying the lots to these streets as boundaries, the purchasers acquired rights of way over the streets so laid off. Bayard v. Hargrove, 45 Ga. 342; Ford v. Harris, supra; Murphey v. Harker, 115 Ga. 77 (41 S. E. 585); Schreck v. Blun, supra; Hamil v. Pone, 160 Ga. 774 (129 S. E. 94); 19 C. J. 928 (§ 127) b. In these circumstances the purchasers and those claiming under them acquired the right of way over these streets as appurtenant to the lots purchased and so conveyed to them. These purchasers having thus acquired the right to pass over these streets, as one appurtenant to their lots, can their right or title to the use of these thoroughfares be lost by abandonment? At common law, a perfect legal title to a corporeal hereditament can not be lost by abandonment. 1 C. J. 10 (§ 14), C. This principle has been declared by this court. It has been an
But these rights of way or easements are incorporeal hereditaments appurtenant to these lots. As to abandonment there is a distinction between corporeal and incorporeal hereditaments. We have seen that the former can not be lost by abandonment; but the latter may be extinguished under certain circumstances. This distinction was recognized in Tarver v. Deppen, supra. As we have stated in the second division of this opinion, an easement of way, acquired by grant, will not be lost by nonuser for any length of time, unless there is clear and unequivocal evidence of ah intention to abandon it. Furthermore, no presumption of abandonment arises from mere nonuser for a time less than that required for the perfection of the easement by prescription. When, however, such nonuser is accompanied by acts manifesting a clear intent to abandon, and which destroy the object for which' the easements were created or the means of their enjoyment, an abandonment will take place. 19 C. J. 943 (§ 153) (4). “The evidence to establish a forfeiture of an easement by abandonment or nonuser must be decisive and unequivocal.” Gaston v. Gainesville &c. Ry. Co., 120 Ga. 516 (48 S. E. 188). Such an easement will be lost when ex
Do the facts appearing in the record show an abandonment by the plaintiffs of their easements of way oyer and in the streets in this subdivision P In the first place, all acts of the Wilmington Island Pleasure and Improvement Company tending to show that it, after having laid off portions of its land into lots, streets, and boulevards, and after having sold a number of said lots to various purchasers, became insolvent, and had all of its property, including its unsold lots in this subdivision, sold by a receiver under a decree of the court winding up its business, and that it had wholly abandoned the enterprise, should be disregarded in determining whether the plaintiffs had lost their easements of way in the streets and boulevards which had been laid out and delineated upon maps or plats under which the company had sold a considerable number of its lots. This is so for the reason that the question is not whether this company had abandoned the enterprise, but whether the plaintiffs had lost their rights or easements of way by abandonment or otherwise. The plaintiffs are either original purchasers at the receiver’s sale of the lots owned by them, or they are representatives of such purchasers, or are successors in title of such purchasers. Plaintiffs proceeded to sell the lots in the subdivision of said property, as per the original map or plat
So we are of the opinion that the verdict finding for the defendants upon the issue of abandonment of their easements of way over these streets is without evidence to support it, and it should be set aside. There is no evidence in the record tending to show that the defendants acquired a title by prescription to the land embraced within these streets which they have closed up, or that the plaintiffs have lost their rights of way over these streets in any other way provided by law. Furthermore, an abandonment by the plaintiffs of their easements of way in and over these streets would not result in vesting the title in Judith F. Meldrim to all the soil
Judgment reversed.