Opinion
18341.
ARGUED SEPTEMBER 15, 1953.
DECIDED JANUARY 12, 1954. REHEARING DENIED FEBRUARY 11, 1954.
Injunction. Before Judge Geer. Early Superior Court. July 1, 1953.
Custer Kirbo, Vance Custer, Phillip Sheffield, for plaintiff in error.
Stone Stone, contra.
The court erred in not granting the interlocutory injunction as prayed.
ARGUED SEPTEMBER 15, 1953 — DECIDED JANUARY 12, 1954 — REHEARING DENIED FEBRUARY 11, 1954.
John P. Hudspeth filed a petition against Early County, and Clarence Martin, J. B. Gaulden, Herman Smith, Sam R. Chandler, and C. N. McArthur, as the duly elected, qualified, and acting Board of County Commissioners of Early County, and M. C. Chester, Superintendent of Roads and Bridges and County Warden. In substance his petition alleged: By virtue of the last will and testament of E. B. Hudspeth, and also by virtue of a certain trust deed from John P. Hudspeth to John P. Hudspeth, trustee, the petitioner is trustee of his named children, and as such trustee has legal title to, and possession and control of, described lands. On May 5, 1953, the board of county commissioners at its regular May meeting adopted the following resolution: "Motion, made, seconded and carried that the County Warden be instructed to remove all gates and obstructions on the Gilbert Landing Road within the next 30 days and that Mr. J. P. Hudspeth be given notice of this action by registered mail." Notice as provided in the resolution was given to the petitioner. The road referred to in the resolution is a private road, laid out and used as such for a number of years by the petitioner's predecessors in title and by the petitioner. The private road has been abandoned and closed by the petitioner's predecessors in title and by the petitioner for more than seven years, and the erection of gates and fences across the road is necessary for full and complete use and enjoyment of the lands described. The adoption of the resolution referred to by the board of county commissioners is ultra vires and illegal, in that it will deprive the petitioner of his lawful and rightful use of the lands described, and the board of county commissioners has no lawful authority to cause the removal of the gates and fences. Unless the defendants are enjoined, they will cause the removal of the gates and fences. The petitioner has no adequate remedy at law. The removal of the gates and fences of the petitioner will result in a multiplicity of suits, and the petitioner will suffer irreparable injury, unless the defendants are enjoined and restrained.
He prayed that the defendants be temporarily and permanently restrained and enjoined from entering upon the petitioner's land and causing the removal of his gates and fences therefrom, for process, rule nisi, and other relief. The petition was duly sanctioned and ordered filed, and the defendants were required to show cause why the prayers of the petition should not be granted; and until the hearing the defendants were restrained as prayed.
The defendants filed an answer, in which they denied that the road was a private road and denied that the adoption of the resolution referred to was ultra vires and illegal. They admitted that, unless enjoined, they would cause the gates and fences of the petitioner to be removed. They denied that the petitioner would suffer irreparable injury as a result of the alleged illegal acts of the defendants, and they also denied that the petitioner had no adequate remedy at law.
Upon the hearing the petitioner testified in part: The Gilbert Landing Road runs approximately east and west. Going west, it went to a landing owned by a Mr. Gilbert, which was used for receiving freight on the river. The landing has not been used for approximately 40 years. The last person to live at the landing was a Negro named Brown, in 1915. East from the landing, no one lives on the road. The petitioner owns the land on both sides of the road, and it is farm and pasture land. In 1951, Mr. White, one of the county commissioners, asked Mr. Chester (road superintendent) to build a road as far back as the old Gilbert homestead, owned by Claude Sawyer, and the petitioner asked the superintendent to put some dirt in some holes. Mr. Chester did work for other people on private property as a courtesy; this was customary. Prior to that time he had Henry Austin put some dirt in the worst holes to get the road passable. The petitioner paid Mr. Austin for his work. In the spring of 1953, Mr. Godfrey did some work on the road. It would become impassable, and the petitioner would have to throw dirt in there. There has been a road there only intermittently. The county at no time has built or maintained a road, and the road is just wide enough to drive a vehicle in the ruts. The petitioner's first gate is 1,000 yards from the river. Tom Harris put a gate across the road when he owned the property, and the gate stayed there until the petitioner acquired the Camp lands, north of the road. The Susie Harris gate was 500 yards from the river and was put there prior to 1910, and the petitioner kept a gate there until he acquired the Camp property in 1940. In 1941 he moved the gate out eastward 1,000 yards, and it has been there ever since. The landing has not been operated since 1913 or 1914. The road is less than 15 feet wide. It has not been in the same place two years at a time. The county pulled the ditches from Pleasant Grove Church to the foot of the hill, which is east of the gate. The county did go in there with their road force under Bennett Smith and take up dirt on the side of the road and put it on top. That was east of the gate; they did not go west of the petitioner's gate. One time the county took down one gate and went in there and worked, pulled the ditches, and bulldozed the trees. The petitioner told them he did not want them in there and they did not go any further. At the time when the Gilbert Landing was in operation and steamers were running on the river, the road was very generally used by the public. The boats went off the river, and the road was used less and less. It has fallen in bad repair. There are large gullies in several places, which have eaten into the road. When it would rain, the slough would fill up from six to twelve months at a time, and at that time travelers went through the field of the petitioner. When the county forces went there, the petitioner told them not to work the road beyond the gate. The work they did helped, but they did not do enough to keep the road open and passable, and the petitioner put a gate across the road and started planting corn and things like that.
Theo White testified for the petitioner that in 1952 he was a county commissioner. He told the road superintendent to work the hill for the petitioner. That is all the public work that has been done on the road within the knowledge of the witness in 55 years. The back gate on the road, the Harris gate, was there when the witness was hauling freight from the landing 55 years ago.
Theo Williams testified that, during the period of approximately five years (from 1927 to 1932 or 1933) he was with the county, working the public roads, he did not work the Gilbert Landing Road.
C. A. Tiner testified that he was a county commissioner in Early County from 1933 to 1936, and during that time the county did not work the Gilbert Landing Road.
Henry Austin testified in regard to doing certain work for the petitioner, some of it on the road, and some not on the road, for which the petitioner paid him $1,300 to $1,400.
H. A. Godfrey testified for the petitioner that he had done some work on the road, for which the petitioner paid him $40.
B. F. Sims testified for the petitioner that the county authorities had not worked the road to the river within twenty years, that they did some work on the hill outside the petitioner's gate.
O. H. King testified for the defendants that he had been familiar with the Gilbert Landing Road for seventy years. During the time people were hauling freight that came in on the boats on the Chattahoochee River, the road was being used as a public road. He had never seen any work done on the road by Early County west of the gates, and he had been knowing the road for 65 years.
Bennett Smith testified for the defendants that in July, 1952, under the direction of the road superintendent, he did some work on the road, and that he had done some work on the road twelve years prior.
Claude Sawyer testified for the defendants that he had been familiar with the Gilbert Landing Road for thirty years. During that time it had been open and in use by the general public. In either July, 1950, or 1951, the county forces worked on the road. People used the Gilbert Landing Road for fishing and pleasure riding on Thursday and Sunday afternoons. The gates do not interfere with the land of the witness. The only reason the witness has to go back to the river is that he does hook-and-line and basket "catfishing." The county maintained the road to the gate where the lock is. When the gate was first put up, the witness had a key to the lock. After about a year, the lock was changed, and the witness made application to the county commissioners to open the road.
Reese Wolf, for the defendants, testified that he had known the Gilbert Landing Road all of his life. He was 69 years of age. In the days when the P. W. A. worked the roads in Early County, he was foreman of 18 or 20 men, and he did work on the hill in 1934 or 1935. That was outside of the gate, the Susie Harris gate. The work was outside of where the gates are now.
It was stipulated that D. B. Thompson, a witness for the petitioner, testified that he was County Warden of Early County from 1915 to 1925, and he had no recollection of doing any work on the Gilbert Landing Road in that time.
At the conclusion of the hearing the trial judge entered an order refusing to grant an interlocutory injunction, and the exception is to that judgment.
The act creating a Board of County Commissioners of Early County, approved March 24, 1933 (Ga. L. 1933, p. 515 et seq.), provides in section 9, with reference to the duties of the superintendent of roads: "He shall have charge of laying out, building, repairing, improving, and maintaining the public roads and bridges of the county under orders of the board of county commissioners." In section 10 of the act it is provided that the board of county commissioners has exclusive jurisdiction "in establishing, altering or abolishing roads, private ways, bridges, ferries, according to law." It is further provided in section 10 that the board shall "have and exercise all of the powers which are by the Constitution and laws of Georgia vested in ordinaries when sitting for county purposes." The language quoted from the act creating the Board of County Commissioners of Early County is sufficiently broad to authorize the commissioners to direct the County Road Superintendent to remove an obstruction from a public road. See Hardy v. Prather, 208 Ga. 764 ( 69 S.E.2d 269).
In the present case the petition alleged that the Gilbert Landing Road is a private road. This allegation was denied by the defendants in their answer. At the hearing before the trial judge on the application for interlocutory injunction, there was no evidence tending to show that the road had been established as a public road by an act of the General Assembly or by an order of the ordinary or other authority having charge of county affairs. See Code § 95-101. The sole question for determination by this court is whether or not the testimony introduced would be sufficient to authorize a finding that the Gilbert Landing Road became a public road by either dedication or prescription. If the evidence on this question was in conflict, and if there was any evidence sufficient under our law to show a public road by dedication or prescription, the discretion of the trial judge in denying the interlocutory injunction should not be disturbed. Thompson v. Mutual Investment Corporation, 188 Ga. 476 ( 4 S.E.2d 44); Byrd v. Wells, 191 Ga. 265 ( 11 S.E.2d 887); Moon v. Clark, 192 Ga. 47, 51 ( 14 S.E.2d 481).
On the question as to whether or not a public road was established by dedication or prescription, there is no substantial or material conflict in the evidence. It clearly appears that on one occasion the road authorities of Early County worked on the road at the instance of the petitioner, and that on another occasion they did some work, which was discontinued at the petitioner's request. The testimony of Bennett Smith, a witness for the defendants, is substantially in accord with the testimony of the petitioner, that work was done on the road by the county authorities on two occasions. There is no material contradiction of the petitioner's testimony with reference to the condition of the road, or of his testimony that one or more gates have been in existence on the road as far back as any witness has any recollection of the use of the road by the public.
This court has many times stated the rules essential to show the establishment of a public road by dedication or prescription. See Georgia R. Bkg. Co. v. City of Atlanta, 118 Ga. 486 ( 45 S.E. 256); Southern Ry. Co. v. Combs, 124 Ga. 1004 ( 53 S.E. 508); Healey v. City of Atlanta, 125 Ga. 736 ( 54 S.E. 749); McCoy v. Central of Ga. Ry. Co., 131 Ga. 378 ( 62 S.E. 297); Penick v. Morgan County, 131 Ga. 385 ( 62 S.E. 300); Louisville Nashville R. Co. v. Hames, 135 Ga. 67 ( 68 S.E. 805); Mayor c. of Savannah v. Standard Fuel Supply Co., 140 Ga. 353 ( 78 S.E. 906, 48 L.R.A. (NS) 469); Lee County v. Mayor c. of Smithville, 154 Ga. 550 ( 115 S.E. 107); Shirley v. Morgan, 170 Ga. 324 ( 152 S.E. 831); Morgan v. Shirley, 172 Ga. 727 ( 158 S.E. 581); Atlantic Coast Line R. Co. v. Donalsonville Grain c. Co., 184 Ga. 291 ( 191 S.E. 87); City of Rome v. First Nat. Bank, 188 Ga. 279 ( 3 S.E.2d 653); Dunaway v. Windsor, 197 Ga. 705 ( 30 S.E.2d 627); Savannah Beach, Tybee Island v. Drane, 205 Ga. 14 ( 52 S.E.2d 439); Garner v. Mayor c. of Athens, 206 Ga. 815 ( 58 S.E.2d 844).
The rule with reference to dedication is stated in Hyde v. Chappell, 194 Ga. 536 ( 22 S.E.2d 313), at page 542, as follows: "There are two essentials for a valid dedication: (1) the owner must intend to dedicate; and (2) there must be an acceptance by the public authorities of the property for the public use for which it is dedicated. The intention to dedicate need not be shown by an express declaration, but may be inferred from acquiescence in the public use of the property. Acceptance likewise need not be express, but if the road be used and worked by the public 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." (See cases cited.)
The only testimony in the present case of any use of the road by the general public within recent years is that of Claude Sawyer, that he used the road for "catfishing," and that on Thursday and Sunday afternoons a number of people did pleasure riding over the road. Whether or not this would amount to such use by the public that the public accommodation and private rights might be materially affected should the road be closed entirely need not be determined. Under all of the evidence in this case, it falls squarely within the rule stated by this court in Green v. Bethea, 30 Ga. 896, wherein it was said: "Where the owner of land through which a road passes has permitted it to be used for that purpose, he keeping up a gate at each end to protect a plantation, the public have only acquired a restricted prescriptive right: and to that extent, and with that qualification, are entitled to enjoy it." In the opinion the court said that "the public never did enjoy other than a qualified use of the road," and that the prescriptive right of the public is qualified, in that the plaintiff "be permitted to keep up these gates for the protection of his property," and that the injunction be retained against the commissioners, restraining them from interfering with the maintenance of the gates. See also Savannah F. W. R. Co. v. Gill, 118 Ga. 737, 748 ( 45 S.E. 623).
In the present case there is no conflict in the testimony that, during all of the time of the existence of the Gilbert Landing Road, there have been one or more gates across the road, as the petitioner and his predecessors in title might elect. The evidence does not show twenty years' continuous possession, use, and upkeep of the road as a public road at any period during the existence of the road, nor any period of even seven years' continuous possession, use, and upkeep of the road as a public road. During all of its use and travel by the public the landowners, over and through whose property the road runs, have asserted the right to maintain gates, and the public, therefore, never acquired more than a restricted, permissive right, subject to the limitation on the use of the road by the gates of the petitioner, and his predecessors in title.
Under the rulings of this court in Green v. Bethea, supra, and City of Blue Ridge v. Kiker, 190 Ga. 206 ( 9 S.E.2d 253), the trial judge erred in refusing to grant an interlocutory injunction.
The contention that the petitioner did not have an interest in the land sufficient to sustain his petition for injunction is without merit. Under the documentary evidence introduced, the petitioner was authorized to seek relief in a court of equity. Judgment reversed. All the Justices concur, except Duckworth, C. J., not participating.