Opinion
33860.
DECIDED APRIL 17, 1952. REHEARING DENIED MAY 1, 1952.
Action for damages; from Clarke Superior Court — Judge West. June 27, 1951.
James Barrow, for plaintiffs in error.
Erwin, Nix, Birchmore Epting, contra.
( a) A valid dedication of land for public purposes, such as streets and highways must consist of two elements — an intention to dedicate on the part of the grantor, and an acceptance on the part of the public or someone authorized for it. The evidence here discloses an intention to dedicate a strip of land for street purposes on the part of the plaintiff's predecessor in title in 1920, but shows no acceptance, and consequently no valid dedication for over thirty years, twelve years after the plaintiff had acquired title to the property here involved.
( b) An easement of access is an appurtenance of property, the destruction of which is actionable. The plaintiff here, having used the undeveloped street as its sole means of access to its property over a period of years, had an easement of access thereto over such strip of land, the destruction of which damaged the value of its property. Accordingly, the verdict in favor of the plaintiff was authorized by the evidence.
DECIDED APRIL 17, 1952 — REHEARING DENIED MAY 1, 1952.
The Gamma Delta Chapter House Corporation filed suit in the Superior Court of Clarke County against the Mayor and Council of the City of Athens and the Board of Education of the City of Athens, seeking damages resulting to the plaintiff's property from the defendants' acts in opening, grading, and paving Hamilton Street, a street abutting the south line of the plaintiff's property and the north line of the property of the defendant Board of Education. Count one of the petition is based on the theory that the area designated as Hamilton Street had never been dedicated to the public for street purposes nor accepted by the city; whereas count two alleges that Hamilton Street was open and in use as a public street for a distance of 250 feet westerly from Milledge Avenue, the latter being a public street bounding the east side of both the plaintiff's and defendant's lots.
The evidence showed without dispute: That both the street and the plaintiff's and defendant's lots had been part of a tract of land owned by a common grantor, Albin P. Dearing; that Dearing had conveyed lot No. 2 to a predecessor in title of the defendant in 1920, the deed containing the following language: "It being understood that a street not less than 32 feet in width shall be opened up by the party of the first part through his property which lies north of the lot hereby conveyed; said street to extend from Milledge Avenue in a westerly direction along the north side of said lot to the extension of Franklin Street"; and the lot was eventually conveyed to the defendant by a deed, which also conveyed all the grantor's "rights with respect to the obligation on the part of Albin P. Dearing to open up the street referred to," etc. Lot number 1 remained in Dearing's possession until his death in 1938, at which time it was conveyed by deeds to a third party, and by her to the plaintiff, these deeds reciting that the property was bounded on the south by "the north side of Hamilton Street (an undeveloped street)." When the plaintiff purchased the property containing the old Dearing home in 1938, the means of access was by a road approximately 10 feet in width running over the right of way of Hamilton Street for approximately 250 feet, then turning into a driveway in the rear of the plaintiff's lot, and thence leading to a garage; this is the only convenient access to the lot, and was used continuously until 1950 and was kept in repair by the plaintiffs, who had stones and cinders placed along it at various times. In 1950 the defendant Board of Education, with the consent of the City of Athens, excavated, graded, and constructed a street and sidewalk and for this purpose excavated to a maximum depth of 10.8 feet, leaving a 17-foot bank, which is too steep to permit the building of a driveway into the plaintiff's premises. The only way the property may be entered now is across an undeveloped street in the rear of the property, which route is very rough, overgrown, unlighted, and not suitable for use by the members of the sorority, and it has been necessary to abandon the garage which stands at the extreme edge of the bank and is dangerous to use. There was undisputed opinion evidence to the effect that the property had been damaged in the amount of $5000.
The jury returned a verdict for the plaintiff. The defendants filed a motion for a new trial on the general grounds only, the overruling of which is assigned as error. This case was originally taken to the Supreme Court, which transferred it to this court for the reason that the Supreme Court is without jurisdiction of an action to recover damages for taking and injuring private property for public use, there being no constitutional question for decision.
At common law, a municipal corporation was not liable for damages to property resulting from a change of grade of a street or highway unless the work was negligently or unskillfully done, as this was not such a "taking" of property as was compensable. Under article I, section III, paragraph I of the Constitution of Georgia (Code, Ann., § 2-301), private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid; and a right of ingress to or egress from property may constitute an easement, the impairment of which will render the actor liable for damaging the property although there has been no taking of the property itself. Hurt v. City of Atlanta, 100 Ga. 274, 277 ( 28 S.E. 65).
A valid dedication of land for public purposes such as streets and highways must consist of two elements — an intention to dedicate on the part of the grantor, and an acceptance on the part of the public or someone authorized for it. Georgia R. Bkg. Co. v. City of Atlanta, 118 Ga. 486 ( 45 S.E. 256); City of Savannah v. Bartow Inv. Co., 137 Ga. 198 ( 72 S.E. 1095); Seaboard Air Line Ry. Co. v. Greenfield, 160 Ga. 407 ( 128 S.E. 430). It does not appear from the evidence in this case that the driveway in question between the plaintiff's and the defendant's property was accepted either expressly or by implication as a public road until the work of excavating and grading a street was commenced in 1950 by the Board of Education with the aid and approval of city authorities. The city had never taken any formal action in regard to it, and had not worked it or contributed to its upkeep. Similarly, there is a total lack of evidence that members of the public generally used the driveway. Its use between 1920 and 1938, if any, is not shown; between 1938 and 1950 there is no evidence that it was used by others than members of the sorority and their invitees. The original owner, Dearing, covenanted in his deed to the predecessor in title of the defendant Board of Education to open a street not less than 32 feet in width, and the right of the defendant to open such a street was expressly reserved in the deed by which it purchased the property. This right, however, was not exercised for the twelve year period during which the plaintiff used and maintained a street or driveway over most of this area which provided it with its only means of ingress to the property. The recital in these deeds is not, in and of itself, enough to constitute a valid dedication. In Ford v. Harris, 95 Ga. 97, 100 ( 22 S.E. 144), where the grantor laid off streets on a plat and sold property with reference thereto, the court held, in reference to this action, as follows: "There was probably no dedication, in the technical sense of that word, of the strip in question [designated as Grove Avenue in the plat] to the public as a street; but undoubtedly the purchasers of the lots acquired an easement in the use of the strip as a way to and from their property. Properly speaking, there can be no dedication to private uses, but only to the public use. However, if the owner of land lays out streets and alleys and afterwards sells lots bounding upon them, while this does not constitute them public streets, unless the public shall in some way accept and adopt them as such, yet the purchasers of those lots acquire the right to have the strips designated as streets remain open for their use as a perpetual easement over the ground for ingress to and egress from their property." See also Parsons v. Trustees of Atlanta University, 44 Ga. 529. The plaintiff here was using the strip in question in conformity with the purpose of the original grantor, i.e., as a street or roadway. It was not, therefore, asserting any right in the soil inconsistent with the public easement, as was the case in Brown v. City of East Point, 148 Ga. 85 ( 95 S.E. 962). In Atlanta West Point R. Co. v. City of Atlanta, 156 Ga. 251 ( 119 S.E. 712), also cited by the plaintiffs in error, there was an entirely different situation arising from an express contract binding the railroad to construct a bridge over its right of way at such future time as the City of Atlanta should desire to extend a named street over said railroad. This contract comprised an intention to dedicate on the part of the railroad (predecessor in title to the defendant), and imposed a duty upon it to perform certain acts upon the happening of a future contingency — that is, upon the extension of the street in question by either the City of Atlanta or Fulton County, which contract was made the judgment of a court of record and was binding upon the railroad at the time of the happening of the contingency. Here, on the contrary, there was, at the most, a mere expression of intention to dedicate the strip in question on the part of the grantor, Dearing, with no acceptance by anyone, and while the plaintiff might, on the one hand, have had such notice and been in such privity of title as to be precluded from using the strip, or its half thereof, for any purpose other than a roadway, it on the other hand had a perfect right to use the land for any consistent purpose, and having chosen to use it as a roadway for a period of twelve years it acquired, both under the provisions of the deeds in question and by virtue of such use, a vested right which cannot be damaged or taken from such owner without due compensation. State Highway Board v. Baxter, 167 Ga. 124, 134 ( 144 S.E. 796). Under the undisputed evidence in this case, the defendants, in exercising their right to develop the street in question, destroyed a way of ingress to and egress from the plaintiff's property, which the latter had exercised in connection with the street or roadway as it had existed for a period of over twelve years prior to that time, which destruction resulted in an impairment of the market value of the plaintiff's property of at least the amount of the verdict. It follows, therefore, that the verdict was authorized by the evidence in this case, and the trial court did not err in denying the motion for a new trial.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.