Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 509 and former Code 1933, §§ 85-410 and 95-1721, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Intergovernmental exchanges not governed by disposal provisions.

- An exchange of condemned property between the Department of Transportation and a county did not require application of the notice requirements and repurchase rights of O.C.G.A. § 32-7-4. Swims v. Fulton County, 267 Ga. 94, 475 S.E.2d 597 (1996).

Construction.

- Phrase "adequate for public road purposes" in O.C.G.A. § 32-3-3(d) did not mean that the property presently had to have a road constructed on it that met certain engineering standards, but that, in a general sense, the property to be acquired must have been suitable or adequate for accommodating a public road. Rabun County v. Mt. Creek Estates, LLC, 280 Ga. 855, 632 S.E.2d 140 (2006).

Cited in DOT v. Ridley, 149 Ga. App. 16, 253 S.E.2d 563 (1979); Citizens Coalition for Planned Growth, Inc. v. Glynn County, 249 Ga. 664, 292 S.E.2d 847 (1982); DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).

Creation of public road.

- Under the common law, a public road may come into existence by prescription. Southern Ry. v. Combs, 124 Ga. 1004, 53 S.E. 508 (1906) (decided under former Civil Code 1895, § 509).

Since a private road had been blocked and impassable for more than 10 years, there could not have been continuous use of the road for 7 years and, therefore, there could be no prescriptive rights in the road. Chandler v. Robinson, 269 Ga. 881, 506 S.E.2d 121 (1998), overruled on other grounds, Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (2007).

Road obtained by prescription becomes public.

- Public road can come into existence by public use and public work, and when such use and work are continuous for 20 years, it is certainly a public road, so far as the right of the people to use the road as a highway is concerned. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Mandamus to require county to maintain road.

- Group of landowners were properly granted mandamus relief requiring a county to maintain an adjacent road as the county acquired title to the road by prescriptive acquisition, abandonment was not an issue, and compliance with O.C.G.A. § 32-3-3(c) did not need to be shown when a roadway was otherwise acquired by prescription; moreover, urging that a county's failure to meet the county's obligation to maintain public roads was an acceptable method of abandoning a roadway would encourage counties to disregard their public duty. Shearin v. Wayne Davis & Co., P.C., 281 Ga. 385, 637 S.E.2d 679 (2006).

Dedication may be written, by parol, inferred, or implied.

- Dedication may be made in writing, or by parol; or dedication may be inferred from acts, or implied, in certain cases, from long use. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Dedication by acts showing assent to public use.

- Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts showing an assent that property should be so used and enjoyed. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Acts must show unambiguous intent to abandon.

- When an established dedication is claimed, the acts relied on to establish the dedication must be such as to clearly and satisfactorily indicate a purpose on the part of the owner to abandon the owner's personal dominion over the property and to devote the property to a definite public use. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

In order to constitute a dedication of land to public uses, an intention on the part of the owner to abandon the use of the land to the public must be shown by proof of unequivocal and unambiguous words or acts of such owner; the circumstances must be such as to show a clear assent to such dedication. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Inference from owner's acquiescence implies knowledge of public claim.

- While an intention to dedicate need not be shown by an express declaration to that effect, but may be inferred under certain circumstances from an acquiescence by the owner in the use of the owner's property by the public, such acquiescence is in the nature of an estoppel in pais, and implies a knowledge on the part of the owner of the claim by the public to the right to appropriate the owner's property to the public use. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Occasional public roadwork does not prove presumptive dedication.

- Occasional road-working of property by public authorities, there being no other evidence of maintenance, is not of itself sufficient to create the presumption of an intention to dedicate; the use and maintenance must be of the character and for the length of time sufficient to create a presumptive right of the public therein. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Retention of dominion despite public use.

- Mere fact that the public uses the property of a private individual is not necessarily inconsistent with the retention of dominion by the owner. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Mere use of one's property by a small portion of the public, even for an extended period of time, is not sufficient to authorize an inference that the property has been dedicated to a public use, unless it clearly appears that there was an intention to dedicate, and that this dedication was accepted by the public authorities, either in express terms or by implication resulting from the maintenance of a way public in its nature. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Failure to act in isolated instances.

- Acquiescence cannot be effective to deprive the owner of the owner's property when the claimed acquiescence amounts to no more than a failure to protest in isolated instances when some members of the public travel over the owner's land. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Period must be long enough to presume gift.

- In every case of an implied dedication it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Prescription requires public use for 20 years.

- Before a highway can be established by prescription, it must appear that the general public, under a claim of right, and not by mere permission of the owner, used some defined way without interruption or substantial change, for a period of 20 years or more; the use must not only be adverse, but the use must be continuous and uninterrupted, although it is not every slight or occasional use of the land by the owner that will constitute an interruption of the public use. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Uninterrupted adverse use under claim of right.

- When there is no other evidence against the owner to support a dedication but the mere fact of such use, so that the right claimed by the public is purely prescriptive, it is essential, to maintain it, that the use or enjoyment should be adverse, that is with a claim of right, and uninterrupted and exclusive for the requisite length of time. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Less use needed for dedication than for prescription.

- Since there was no intention to dedicate, but the public has taken possession of the property of an individual, and used and maintained the property as a highway for a period of 20 years or more, a highway by prescription becomes complete; when there was an intention to dedicate, the maintenance of a way for a less time will bring into existence a completed highway by dedication. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

County must negotiate with owner.

- Negotiations by a county authority, procuring rights-of-way for roads in the name of the State Highway Department (now Department of Transportation) in an effort to agree with the owner of the property to be taken are not only authorized, but are required. Miller v. State Hwy. Dep't, 200 Ga. 485, 37 S.E.2d 365 (1946) (decided under former Code 1933, § 95-1721).

No transfer tax on property acquired by Department of Transportation.

- Tax on transfer of real property does not apply to property acquired by Department of Transportation. 1974 Op. Att'y Gen. No. U74-56.

What property may be exchanged.

- DOT may only exchange real property for real property and may not include any exchange of money or other personal property in such an exchange. 1992 Op. Att'y Gen. No. 92-8.

ALR.

- Reservation of right of way for railroad or street railway in dedicating property for highway, 43 A.L.R. 766; 131 A.L.R. 1472.

Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.

Validity and effect of conditions or covenants in deed of property for streets relating to the use of the property or the street, 69 A.L.R. 1047.

Dedication: acceptance of some of streets, alleys, and the like appearing on plat as acceptance of all, 32 A.L.R.2d 953.

Width and boundaries of public highway acquired by prescription or adverse use, 76 A.L.R.2d 535.

Relative rights and liabilities of abutting owners and public authorities in parkways in center of street, 81 A.L.R.2d 1436.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.