Mayor of Savannah v. Bartow Investment Co.

Lumpkin, J. (After stating the foregoing facts.) The Mayor and Aldermen of the City of Savannah claimed that it had a right to open certain streets through a tract of land held by the Bartow Investment Company. The latter filed an equitable petition to enjoin the municipal authorities from doing so. An interlocutory injunction was granted, and the defendant excepted. The city claimed the right to utilize certain parts of the land as streets, first, as a representative of the public; and second, on the ground that it was entitled to an easement in certain streets which had been plat [204] ted in a former division of the land, because it had purchased two small lots lying in another part of the tract originally divided. In this court counsel discussed with much ability and citation of authority the conflicting views of different courts as to the right of a purchaser of a subdivision of a tract of land, under what is sometimes called the unity theory, and under the contrary theory; and also questions of dedication, acceptance, abandonment, and prescription. An examination of the opinion of the presiding judge, which is published in connection with the statement of facts, will show that he did not deal with the conflicting views of other courts, but confined himself to the- law as announced in the- code and in the decisions of this court; and held, that, under the evidence tending to show that there was no acceptance by the public, and touching abandonment or forfeiture of any easement of way arising by virtue of purchasing in reference to a plat, an injunction should' be granted. It is declared by the Civil’Code (1910), § 3644, that “An easement may be lost by abandonment, or forfeited by nonuser, if the abandonment or non-user continue for a term sufficient to raise the presumption of release or abandonment.” This has been held to apply to a municipal corporation as well as to an individual. Kelsoe v. Town of Oglethorpe, 120 Ga. 951 (48 S. E. 366, 102 Am. St. R. 138). Abandonment is a mixed question of law and fact. Gaston v. Gainesville etc. R. Co., 120 Ga. 516 (48 S. E. 188). Under the agreed statement of facts, there was ample evidence tending to show an absence of acceptance by the public authorities and an abandonment or forfeiture of any easement in owners of other lots, created by virtue of the original division of the land and the platting of streets, to authorize the grant of the interlocutory injunction. Whether such grant was erroneous is the only question before us; and we do not deem it proper to go further and to discuss the numerous and interesting questions of law which were argued by counsel for the respective parties, touching the question of the rights acquired by one who purchases a part of a subdivision of land under a plat. See, on the subject, Ford v. Harris, 95 Ga. 97 (22 S. E. 144); Schreck v. Blun, 131 Ga. 489 (62 S. E. 705). Judgment affirmed. All the Justices concur, except Hill, J., not presiding.