wharves account. The cost of the paving of | paved. But the use by the public of the a wharf by the city was collectible from the paved area on the wharf lot was never of wharf owner. The evidence is silent as to such a character as to interfere with its use whether or not the city reimbursed itself for by the wharf owner for his own business, or the paving of this area from the wharf own- to indicate that the owner, by tolerating such er, as it had the right to do under its ordi- use by the public, intended to dedicate his nance. There was no curbing or sidewalk property to the public as a street. The ownlaid on the locus in quo, or other interference er paid the public taxes on the property, with an entrance from the 20-foot street to which were received by the city, without any part of the wharf lot. The pavement ex-giving notice of any adverse claim; and the tended to the posts which supported the roof general trend of the testimony was that the of the wharf shed, and the eaves projected area in front of the shed on the wharf was over it. During this time many steamers, left open, on account of the peculiar nature including the New York and Philadelphia of wharf property, for use in connection lines, used this wharf. It was one of the with the owner's business upon the wharf. busiest spots in the city. The area in dis- The circumstances to which we have just pute was used by the patrons of the wharf alluded, as well as other matters embraced in delivering and receiving freight. Busses in the testimony, were insufficient to show and hacks were stationed on it for the re- an intent by the wharf owner to dedicate ception of passengers, débris and rubbish any part of his property to a public use, or were thrown upon a portion of it, and it was that the public authorities attempted to acgenerally used by the wharf owner in con- cept any such dedication, or that the use by nection with the business of the wharf, before the public was so adverse as to exclude the and after the laying of the cobble stones. In owner from the use of his own property. 1889 the Central Railroad & Banking Company constructed a track over a part of the wharf property, under permission of the municipality to lay it on River street. A spur track was also built thereon for the use of the wharf. The spur track extended beyond this property for the use of other wharf owners, but has been discontinued in part. In the ordinance authorizing the construction of the railroad along River street, it was provided that "all damages that may be sustained by private individuals or corporations from the use and occupation of their property in exercising the rights herein granted shall be met and paid by said company." The evidence showed that Lincoln street sloped from the bluff to the water's edge, and that most probably to avoid the expense of regrading, and on account of a jog in a building on the east side of Lincoln street, the railroad was constructed upon the wharf front, where the ground was more level, instead of upon the 20-foot street. The evidence does not disclose whether this was done with the assent or over the protest of the wharf owners. The railroad track was used mostly for the handling of freight cars, and frequently dead cars were left standing on the track on this area for a day or more at a time. Whatever may be the respective rights of the railroad company and the wharf owners inter sese, it is clear that the construction of a track along the wharf front, under an ordinance granting permission to lay it upon a street and exempting the city from damages if laid upon private property, is too inconclusive an act on which to base dedication or prescription of the wharf front occupied by the railroad as being a part of the street.

Since the paving of the wharf the general public had been accustomed to travel over the area covered both by the 20-foot street

[1, 2] The idea of dedication to the public of a use of land for a public street depends upon the intent of the owner in some way to make such dedication. "The acts relied upon to establish such dedication must be such as clearly showed a purpose on the part of the owner to abandon his personal dominion over such property and to devote the same to a definite public use." Swift v. Mayor, etc., of Lithonia, 101 Ga. 706, 710, 29 S. E. 12; Irwin v. Dixon, 9 How. 10, 13 L. Ed. 25. In Georgia Railroad v. Atlanta, 118 Ga. 486, 45 S. E. 256, Mr. Justice Lamar, in discussing this proposition, said: "The case comes squarely within the rule applicable to squares and areas around stations, depots, wharves, and other places of a quasi public character, and to which the public at large are invited. The fact that streets or roads enter such open spaces from various directions, and that pedestrians and vehicles pass across the square for the purpose of going from one road to another, does not of itself show that the space has been dedicated to a public use. that, without intent to make a dedication, the company permits the land to be used by those who do not come thereon for the purpose of business with the company, should not operate to defeat its title. Its indulgence ought not to be charged against it, and used as a means of depriving it of property allowed to be enjoyed, but not intended to be given. That it does not capriciously warn off persons crossing the strip will not wipe out the effect of acts showing an intention to hold the property as its own. The public in a proper case may obtain the title by condemnation, if the other essential elements are present. But no law of force in this state intends to take private property for public purposes without payment there

• The fact

DAVID V. TUCKER.

(140 Ga. 240)

name of dedication, where there has not been an express gift by the owner, or where his long-continued acts have not indicated a (Supreme Court of Georgia. July 16, 1913.) purpose to set apart the property for the public good."

The paving of the area, under the facts submitted, will be attributable to the municipality's regulatory control over this quasi public property, rather than as an acceptance of an implied dedication. The Savannah river is a navigable stream, and the public authorities have from the earliest times exercised regulatory control of privately owned wharves on navigable waters. In this state the Railroad Commission is given jurisdiction over wharves and docks. Civil Code, § 2662. Had the municipality, as it had the right to do, compelled the payment of the amount expended for the pavement of this area, then, of course, no implication of dedication or acceptance could be implied from such an act. If the municipality failed to enforce its rights in this regard, then its pavement of the street will be deemed voluntary. It is of great significance that no gutters or sidewalks were constructed upon this area, that nothing was done by the city to prevent an easy approach to the shed, that the pavement was extended under the eaves of the roof of the shed, and that taxes were accepted by the city upon this very area as being a part of the wharf lot, without any notice from the municipality that it claimed an easement over it.

Mitchell

V.

(Syllabus by the Court.)

1. TRIAL (§ 343*)-VERDICT-CONSTRUCTION.
dren in possession of certain land to which he
Where one died, leaving a wife and chil-
had title, and subsequently the grantee in a
deed executed by the husband before his death,
and purporting to convey title to such grantee,
evicted the widow, and after such eviction she
filed a petition to have this deed canceled on the
ground that it was not an absolute conveyance
of the property, but merely a security deed or
petition that the grantee in the deed held the
a mortgage to secure a debt, asserting in the
lands "in trust for the grantor," and a verdict
was rendered in favor of the widow, finding
that she be restored to possession and that the
deed be canceled, such verdict, construed, as it
must be, in the light of the pleadings and un-
disputed facts, and the decree upon the same
(which is not broader than the verdict), has the
ing the widow to such possession as she had be-
effect merely of annulling the deed and restor-
fore her eviction; and the verdict does not have
the effect, nor does it purport to have the effect,
of declaring or vesting title in the widow.
Dig. §§ 809-812; Dec. Dig. § 343.*]
[Ed. Note.-For other cases, see Trial, Cent.

2. TRIAL (§ 253*)-INSTRUCTIONS-IGNORING
ISSUES OR DEFENSES EVIDENCE.

An exception to a charge on the ground that "it ignored the defendant's contention that der a gift by her father, who had a valid title defendant claimed the land in controversy unthereto," is without merit, where from the undisputed evidence it appears that the defendant's father never had title.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]

3. ADVERSE POSSESSION (§ 112*)—Burden of PROOF.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 651, 653, 654, 657-659, 661-663, 665, 666; Dec. Dig. § 112.*] 4. ADVERSE POSSESSION (§ 74*)-Color of TITLE-WHAT CONSTITUTES-DECREE.

A verdict and decree, which, properly construed, did not purport to find title in a party, or to vest such party with the title, did not amount to color of title.

[3] The doctrine of title by prescription is founded on the presumption of a right by grant or license to the easement, after 20 Inasmuch as the evidence for the plaintiff years of uninterrupted adverse enjoyment. showed title in his intestate, as alleged in the To authorize such presumption from posses-sertion that she had acquired a good prescriptive petition, and the defendant relied upon her assion alone, the enjoyment must not only be title, the court did not err in so charging the uninterrupted for the space of 20 years, but jury as to place upon the defendant the burit must be exclusive and adverse, and under den of establishing, by a preponderance of evidence, the prescriptive title asserted. a claim or assertion of right, and not by the consent or favor of another claimant or owner. The fact that the user must be adverse must exist in every such case to authorize the necessary presumption. Rome, 49 Ga. 19, 15 Am. Rep. 669; McCoy v. Central of Georgia Ry. Co., 131 Ga. 382, 62 S. E. 297. In all cases of prescription the prescriber must show a possession hostile to that of the owner of the land. From the nature of wharf property the approaches must be kept open for the convenience of the owner and his customers. It would be inequitable to impose a public easement on the wharf owner's property because he tolerated liberties from the public which did not interfere with his private enjoyment. From a careful consideration of all the testimony, we think the circumstances relied on to show dedication and prescription too inconclusive to deprive the wharf owner of a part of his property. The court did not err in instructing the jury in substance that the defendant could not Judgment affirmed. All the Justices con- prevail upon the theory that she had title derived from her father, when in a former suit she

cur.

session, Cent. Dig. §§ 443-447; Dec. Dig. 8 74.*]

[Ed. Note.-For other cases, see Adverse Pos

5. APPEAL AND ERROR (§ 1066*)-HARMLESS ERROR-INSTRUCTIONS.

Under the evidence, the defendant, who set up prescriptive title by virtue of seven years possession under color of title, was not entitled to a charge on the subject of the effect of possession under color of title, and was not injured by the charge upon that subject, even though the same was not strictly accurate.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] 6. ESTOPPEL (§ 68*)—CLAIM IN JUDICIAL PRO

CEEDING.

reasonable construction." Civil Code, § 5927. And the entire pleadings and all undisputed facts proved upon the trial may be examined and considered in construing the verdict. Mayor, etc., of Macon v. Harris, 75 Ga. 761.

By amendment she alleged that the agree- | reasonable intendment, and are to receive a ment between James David and William Ray was that Ray was to hold the land in trust for David until the payment of the debt, and that Ray took possession of the land affected by said trust, and that there was no intention on David's part to make an absolute conveyance of the land to Ray. It does not appear that any demurrer to this bill was filed; but Ray filed his answer, denying that he had received the deed merely as a security deed for any amount of money due him, and insisting that the deed, as it purported to be, was an absolute deed conveying title to him in fee simple upon a sufficient consideration. Upon the trial of that case the jury returned the following verdict: "We, the jury, find and decree that the deed to the David place, copy of which is attached to bill as Exhibit B, be and is hereby declared null and void, and be delivered up to be canceled, and that defendant restore possession of said David place to complainant, and that said defendant pay to complainant the sum of $200 and the cost of this case." This verdict was made the decree of the court, and Ray was ordered to restore possession of the David place (the land in controversy) to Mary David.

[2] 2. Another ground of the motion for a new trial complains of the following charge of the court: "She [the defendant] does not deny the fact, as I understand, that upon the death of the father of the children, and her husband, that in law the land in dispute vested in her and the children, share and share alike, unless she saw fit to claim a year's support or a dower, neither of which, they contend, has been applied for." This charge is excepted to on the ground that "it ignores the contention of the defendant that her husband, David, conveyed said land to her father, and received the full purchase money therefor, and that defendant claimed said land through her father, W. C. Ray, who had a valid title thereto." Clearly the exception is without merit, inasmuch as, under the evidence introduced by the defendant in this case herself, W. C. Ray had never had title to the land; and if he had ever claimed title, it was under and by virtue of a deed which she had canceled on the ground stated in her petition therefor, as set forth above.

[3] 3. Inasmuch as the evidence for the plaintiff showed title in his intestate, as alleged in the petition, and the defendant relied upon her assertion that she had acquired a good prescriptive title, the court did not err in so charging the jury as to place upon the defendant the burden of establishing the prescriptive title asserted by a preponderance of evidence.

[4] 4. The defendant's assertion of a good prescriptive title by virtue of seven years' possession under color of title was based entirely upon her possession under the verdict and decree set forth in the opening paragraph of this opinion; and inasmuch as that decree does not purport to vest her with title, or to find that she was vested with title, it did not amount to color of title. Beverly v. Burke, 9 Ga. 440, 54 Am. Dec. 351; Street v. Collier, 118 Ga. 470, 45 S. E. 294; Hansen v. Owens, 132 Ga. 648, 64 S. E. 800.

[1] 1. The court properly instructed the jury in this case that, in the suit brought to cancel the deed from the plaintiff's intestate to Ray, the effect of the decree was to leave the title to the property which that deed purported to convey where it was before the deed was executed; that is, in James David, or rather in his estate, as he had died leaving a wife and children. Nowhere in the bill brought by Mary David to have the deed from James David to Ray set aside and canceled does she assert title in herself, or make any allegation from which an inference could be drawn that she was asserting title in herself. She distinctly alleged that under that deed Ray held the "property in trust for said James David"; and while she did not mention the fact that she had children, she nowhere alleged that at the time of her eviction her possession was in her own right or under claim of title. Throughout that petition she treated the deed from James David to her father as a mere security deed, or as a mere mortgage. She called it a mortgage in her petition. And a decree canceling that paper, as the court said in the charge, had no other effect than to leave the title to the property where it was before. While it restored her to the possession of the land, the possession thus restored was of the same character as it was before she was evicted and before the security deed was canceled; and there is no pretense that up to the time of the eviction her possession was in her own right. For, up to the time of her eviction, as she shows herself, she did not know that Ray was making such a claim of title to [6] 6. The court did not err in charging the property as would enable him to make the jury in substance that the defendant

[5] 5. Inasmuch as the evidence failed entirely to show that the possession of the land in controversy by the plaintiff was under color of title, the instruction of the court in reference to the defendant's contention that she had a prescriptive title, based upon seven years' possession under color of title, will not be examined critically to see if they are entirely accurate; for, having shown no color of title in herself, the plaintiff was not injured by a charge upon that subject, even though it was not in all respects accurate.

Action by W. M. Wadley, executor, against T. E. Oertel, executor, etc., and others. Judgment for defendants, and plaintiff brings error. Affirmed.

On August 21, 1906, Benjamin A. Chew and others brought an action to recover land against H. L. Chichester, Jr., and “W. M. Wadley, executor of Wm. O. Wadley, de ceased," in the superior court of Jenkins county. It was alleged that the defendants were in possession of certain described land, to which the plaintiffs claimed title; that the defendants had received the profits therefrom, and refused to deliver the land or the profits to the plaintiffs. An abstract of title

from a gift by her father, William C. Ray; for, as against the defendant in this case, under the evidence introduced by her, it had been judicially ascertained and declared that Ray never had title to the land, and she will not now be permitted to assert that he once actually had title. It would be playing fast and loose, indeed, with all principles of equity, to allow this defendant in one suit to set up her husband's title to defeat her father, and in such proceeding have the deed which he held from her husband declared void, and now, in order to defeat her husband's estate, have the court declare that the deed from him to her father was valid. [7] 7. "There can be no adverse posses-under which the plaintiffs claimed was atsion against a cotenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession." This is the language of the statute. Civil Code, § 3725. And the substitution of the expression "actual notice" for "express notice," in charging this Code section, was not error. Morgan v. Mitchell, 104 Ga. 596, 30 S. E.

tached. The caption of the process stated the case to be against "H. L. Chichester, Jr., and W. M. Wadley, executor of W. O. Wadley," and commanded H. L. Chichester, Jr., of the county of Jenkins, and W. M. Wadley, executor, of the county of Monroe," to be and appear, etc. The sheriff of Jenkins county made an entry of service "on defendant" by leaving a copy at his most notorious place of abode. An answer was filed, which began, "And now come the defendants in the abovestated case," etc. They admitted possession of the land and the receipt of profits therefrom, but denied that the plaintiffs had title. Pending the suit, an amendment was offerred, so as to make the plea read, “And now comes defendant, H. L. Chichester, in the above-stated case," etc., and to change the plural to the singular number in other parts of the answer. The court refused to

(Supreme Court of Georgia. July 18, 1913.) allow this amendment. Subsequently one

(Syllabus by the Court.)

-DE

1. JUDGMENT (§_670*) — DESIGNATION FENDANT IN REPRESENTATIVE CAPACITY— WAIVER OF DEFECT.

Where a statutory action was brought to recover land and mesne profits, against two persons, the name of one of whom in the petition was followed by the words "executor" of a named person, and where such defendant filed a plea of prescription as executor of his testator, and after the case was lost, and a motion for a new trial was overruled, he, in his representative character, joined in a bill of exceptions and in executing a supersedeas bond, after affirmance of the judgment, an injunction will not be granted to restrain the execution by the sheriff of a writ of possession, on the ground that the judgment only bound him individually, and did not preclude him from asserting the title claimed by the estate.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1181, 1185; Dec. Dig. § 670.*] 2. EXECUTION (§ 171*)—INJUNCTION-GROUNDS -EXISTENCE OF OTHER REMEDY.

If the judgment for mesne profits and the execution issued thereon only authorized the realizing of the amount de bonis propriis, and not de bonis testatoris, this would not require an injunction, but the levy could be met by affidavit of illegality.

[Ed. Note. For other cases, see Execution, Cent. Dig. 88 497-518; Dec. Dig. § 171.*]

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Oertel, as executor of Benjamin A. Chew, and W. E. Platt, as administrator of another of the original plaintiffs, presented their petition, alleging that these two plaintiffs had died, and that the petitioners were their legal representatives, and desired to be made parties in their stead. On this petition service was acknowledged by a firm of attorneys "for H. L. Chichester, Jr., and W. M. Wadley, executor of the estate of W. O. Wadley, deceased." An order was passed making the petitioners parties in lieu of the two deceased plaintiffs. The jury found for the plaintiffs the premises sued for and a certain amount as mesne profits, and a judgment was entered accordingly. A motion for a new trial was made by the defendants. It was overruled, and they excepted.

The bill of exceptions so filed recited that there came on to be heard the case of "Ruth Chew Le Cato, T. E. Oertel, executor of Benj. A. Chew, and W. E. Platt, administrator of Hull S. Chew, against H. L Chichester, Jr., and Wm. M. Wadley, executor of W. O. Wadley." After reciting the overruling of the motion for a new trial, it then concluded: "Wherefore the plaintiffs in error, W. M. Wadley, as executor of W. O. Wadley, deceased, and H. L. Chichester, Jr., come now