Vandiviere v. Anderson

42 S.E.2d 449 | Ga. | 1947

By amendment to the charter of the Town of Mineral Bluff, approved December 12, 1901 (Ga. L. 1901, p. 550), it is provided in sec. 5: "Be it further enacted, that the mayor and councilmen of the Town of Mineral Bluff are hereby authorized and empowered to lay out and establish streets whenever it becomes necessary for the best interest and welfare of said town, or any of its citizens, and to change, alter, transfer and convey, straighten, or improve streets, or any part or parts thereof, whenever it becomes necessary, or to the best interest of said town, or any of its citizens." The plaintiff did not attack the above provision of the charter of the Town of Mineral Bluff as being unconstitutional, nor are any facts alleged to show that the closing of that part of the street described is contrary to the "best interest of said town." The resolution adopted by the mayor and council, and the deed executed pursuant thereto, were authorized by the charter amendment, and the trial court did not err in sustaining that ground of demurrer based on the charter amendment cited. See Kirtland v. Macon, 66 Ga. 388; Dannenberg v. Macon, 114 Ga. 174 (39 S.E. 880); Marietta Chair Co. v. Henderson, 121 Ga. 399 (49 S.E. 312, 104 Am. St. Rep. 156, 2 Ann. Cas. 83) ; Patton v. Rome, 124 Ga. 525 (52 S.E. 742); Jones v. Decatur, 189 Ga. 732 (7 S.E.2d 730).

Judgment affirmed. All the Justicesconcur.

No. 15745. APRIL 17, 1947. H. G. Vandiviere, Solicitor-General of the Blue Ridge Judicial Circuit, as relator for the State of Georgia, acting upon information of named persons, brought a petition against Mrs. Joe Anderson, a resident of the Town of Mineral Bluff. The petition alleged: The Town of Mineral Bluff is a municipality incorporated under the laws of Georgia, with a governing body of a mayor and five councilmen. Bridge Street is one of the most important streets in the town. The defendant has erected a wood garage and a shed in such street, between where it crosses Marietta Avenue and Belgrade Avenue. On October 13, 1945, the town, through its mayor and councilmen, upon the application of Mrs. Anderson, passed a resolution, which was entered on the minutes of the town, authorizing the sale of that portion of Bridge Street whereon the defendant has placed the obstruction described. Thereafter the town, through its mayor and councilmen, executed to the defendant a deed to that portion of the street described. By reason of the facts alleged in the petition, no relief can be had from the mayor and council of the town. The resolution and deed were ultra vires and void. The prayers were for process, rule nisi, temporary and permanent injunction, that the obstructions already placed on Bridge Street be abated as a nuisance, and for other relief.

By amendment duly allowed, the plaintiffs alleged: Bridge Street was laid out in the plans of the municipality, and is designated on the map thereof on record in the office of the Clerk of the Superior Court of Fannin County. It has been a street for approximately 40 years, and the properties adjacent thereto have been bought and sold upon the faith of such street furnishing ingress and egress to such property owners, and if the street is permitted to be obstructed and closed, it will work irreparable injuries and financial loss to the property owners along both sides of the street, at least two of whom are petitioners in this action. From the time of the incorporation of the town, Bridge Street has been kept open and in repair and has been constantly used by the adjoining property owners and the general public, until the attempted sale thereof and the erection of the obstructions described.

The defendant demurred generally to the petition on the ground that it failed to set forth a cause of action either in law or in equity; and for the reason that the mayor and councilmen of the town had a legal right to execute and deliver to the defendant the deed referred to in the petition, under the charter of the Town of Mineral Bluff, and amendments thereto. The demurrer was sustained, and the exception is to that judgment.