318 Ga. 1 FINAL COPY
S23G0169. SUMTER COUNTY et al. v. MORRIS et al.
WARREN, Justice.
Property owners and residents of the Statham Lakefront
subdivision seek to require Sumter County to repair roads in their
subdivision. The trial court held that the County has no obligation
to maintain the roads, but the Court of Appeals vacated that order
and remanded the case for the trial court to determine whether
there was evidence of “recognition of the streets as public streets or
acceptance of the dedication by the public.” This Court granted
Sumter County’s petition for certiorari.1
Adhering to precedent from this Court, which holds that a
county is not obligated to repair and maintain a road if county
authorities have not accepted the land owner’s offer to dedicate the
road to public use, we conclude that the Court of Appeals erred by
remanding this case for the trial court to consider whether the public
1 The case was orally argued in this Court on September 19, 2023. accepted the road as a public road, and we reverse that portion of
the judgment. And because of ambiguity in the Court of Appeals’s
decision, we remand the case for the Court of Appeals to clearly rule
on whether the trial court was correct to conclude that Sumter
County authorities did not impliedly accept the roads as public
roads.
1. On November 16, 2020, John Morris and 29 other people
(collectively, “the plaintiffs”) who were residents of or owned
property on Statham Lakefront Road, East Entrekin Road, West
Entrekin Road, and Selma Lane in the Statham Lakefront
subdivision in Sumter County (collectively, “the Subdivision Roads”)
sued Sumter County and its Board of Commissioners,2 asking for a
2 In naming the Board of Commissioners as a defendant, the plaintiffs
named the individual members of the Board, but do not appear to have sued them in their individual capacities. The plaintiffs’ original complaint named the defendants as “SUMTER COUNTY, GEORGIA and its governing body, THE BOARD OF COMMISSIONERS OF SUMTER COUNTY, GEORGIA, consisting of its duly elected Members, namely, CLAY JONES, SCOTT ROBERSON, GEORGE TOBERT, MARK WADDELL & THOMAS JORDAN.” In their amended complaint, the plaintiffs replaced Tobert and Jordan with William Reid and Jessie Smith to “reflect[ ] the current membership” of the Board of Commissioners.
2 writ of mandamus under OCGA § 9-6-21 (b) to require Sumter
County to repair the Subdivision Roads and for a declaratory
judgment “declaring that [the Subdivision Roads] are public roads
of Sumter County, Georgia and that the Defendants have an official
duty to repair and maintain each of them.”3
At a hearing in June 2021, evidence was presented showing
that the Subdivision Roads had been open to the public since their
creation. In 2010, Sumter County signed an easement agreement
with the Statham Lakefront subdivision homeowner’s association
that gave the County an easement on one of the Subdivision Roads
“for the sole purpose” of road maintenance. The County conducted
maintenance on the Subdivision Roads from at least 2010 until
2019, including resurfacing the roads in 2015 and 2017 as part of
larger county projects that were paid for with some funds that can
be used on non-county roads and some funds that can be used only
on county roads. Conflicting evidence was presented as to whether
3 The plaintiffs also requested attorney fees and later amended their
complaint to add a request for damages. These claims were not expressly addressed in the trial court order and are not at issue here. 3 any county-road-only funds were used on the Subdivision Roads.
Subdivision residents also sometimes conducted maintenance on the
roads. There was no evidence presented that the Subdivision Roads
had ever been expressly accepted as county roads at a meeting of the
Sumter County Board of County Commissioners, but evidence was
presented that the roads were discussed twice at Board meetings,
and that the Board chose not to accept them.
(a) The Trial Court Order
In September 2021, the trial court issued an order denying the
plaintiffs’ motion for mandamus and declaring that “(1) Sumter
County is not the owner of the Subdivision Roads; and (2) neither
Sumter County nor the Board is required to maintain or repair the
Subdivision Roads.” The court found that “the Board did not accept
any offer to dedicate the Subdivision Roads to Sumter County” and
instead “consistently rejected offers to dedicate the Subdivision
Roads to public use.”
The trial court then held that “the fact that the public may have
used the Subdivision Roads does not result in Sumter County
4 becoming responsible for the maintenance and repair of these
roads.” The court also recognized that Sumter County had
performed maintenance on the Subdivision Roads but found that no
county-road-only funds were spent to maintain the Subdivision
Roads, that the County’s “work was authorized” by an easement,
and that subdivision residents “also performed work on the
Subdivision Roads.” The court concluded that because Sumter
County did not exercise “exclusive” “dominion and control” over the
Subdivision Roads, “the work Sumter County performed on the
Subdivision Roads does not establish an implied acceptance of an
offer to dedicate those roads.”
(b) The Court of Appeals Opinion
The plaintiffs appealed the trial court’s order to the Court of
Appeals. The Court of Appeals agreed with the trial court’s finding
that Sumter County “never expressly accepted any offer to dedicate
the roads,” but explained that “lack of express acceptance is not
controlling” because “acceptance of a dedication may be implied.”
Morris v. Sumter County, 365 Ga. App. 323, 327, 327-328 (878 SE2d
5 81) (2022). The court further explained that an offer to dedicate may
be accepted “‘by the appropriate public authorities or by the general
public.’” Id. at 328 (quoting Kaplan v. City of Sandy Springs, 286 Ga.
559, 560 (690 SE2d 395) (2010), with emphasis added). The Court of
Appeals held that the trial court erred by concluding that the
plaintiffs were “obligated to demonstrate that the Board had
accepted dedication,” stating: “the trial court misconstrued the case
law and disregarded the common-law provision that dedication
could be accepted not only by the Board but also by recognition of
the road as a public road by the public.” Morris, 365 Ga. App. at 329
(emphasis in original).
The Court of Appeals did not expressly address the trial court’s
holding that Sumter County did not impliedly accept the dedication
of the Subdivision Roads, but held that the trial court should, on
remand, consider the “evidence that the County maintained the
roads, using public funds, between 2010 and 2019” in deciding
whether the dedication of the road “had been accepted by the general
public or whether there was evidence of recognition of the streets as
6 public.” Morris, 365 Ga. App. at 329. In light of this analysis, the
Court of Appeals vacated the trial court’s decision and “remand[ed]
the case for the trial court to consider whether there was evidence
of recognition of the streets as public streets or acceptance of the
dedication by the public.” Id.
(c) Sumter County’s Petition for Certiorari
Sumter County petitioned for a writ of certiorari from this
Court, and we granted the petition, posing the following question:
Whether the dedication of land by the owner for use as a public road and use by the public of such road, but without express or implied acceptance by the county authorities having jurisdiction over roads, obligates the county to repair and maintain the road.
*
As explained more below, we reaffirm our precedent that a
county is not obligated to repair and maintain a road offered for
public use by the owner unless the appropriate county authorities
have expressly or impliedly accepted the dedication of the roads as
public roads. Thus, the Court of Appeals erred in remanding this
case for the trial court to consider whether the general public
7 accepted the dedication of the Subdivision Roads as public.
We do not know, however, whether the Court of Appeals’s
direction to the trial court to consider “evidence of recognition of the
streets as public streets” is meant to direct the trial court to consider
the County’s recognition—meaning implied acceptance—of the
streets as public, or to consider the general public’s recognition.
Thus, we remand for the Court of Appeals to clarify this ambiguity
by clearly addressing the trial court’s holding that Sumter County
did not impliedly accept the Subdivision Roads.
We begin our discussion with the question posed in granting
Sumter County’s petition for certiorari, which this Court’s
precedent, properly understood, resolves. We then consider and
reject the plaintiffs’ attempts to circumvent this precedent and
instead rely on inapplicable statutes and cases. Finally, we address
the ambiguity in the Court of Appeals’s opinion and the issue the
Court of Appeals should decide on remand.
2. The question posed in this case is whether the public’s use of
otherwise privately owned roads can obligate a county to maintain
8 those roads when, as with the Subdivision Roads here, the private
owner has offered to dedicate the roads to the public, but there has
been no acceptance of the roads by the appropriate county
authorities.4 As this Court explained in Penick v. County of Morgan,
131 Ga. 385 (62 SE 300) (1908), a road can become a public road that
the county has control over and responsibility for if county
authorities accept an offer from the land owner to dedicate the road
to the public. See 131 Ga. at 389 (“If the owner of land dedicates land
for use as a public road, the county authorities can, in their
discretion, accept it for a public road and open a public road over
it.”).5 If county authorities accept the dedication of a public road, the
4 The Court of Appeals noted and rejected Sumter County’s contention
that there was no offer to dedicate one of the Subdivision Roads. See Morris, 365 Ga. App. at 327. On appeal, Sumter County does not dispute this holding.
5 The language of “dedication” of roads or land to the public is used both
in discussing when a county is obligated to repair and maintain a road (the issue in dispute here) and discussing when a private owner is estopped from reclaiming land from public use, but the requirements in these two situations are different. See Penick, 131 Ga. at 391. However, this Court and the Court of Appeals have at times conflated the two situations, see, e.g., Kaplan, 286 Ga. at 560, which appears to have led the Court of Appeals astray in this case. As discussed further in Division 3 (a) below, we disapprove any such conflation, and to decide this case, we apply the requirements for determining when a
9 county generally has an obligation to repair and maintain the road,
and that obligation can be enforced by mandamus. See Ross v. Hall
County Board of Commissioners, 235 Ga. 309, 313 (219 SE2d 380)
(1975) (holding that the petitioners were entitled to mandamus
under the materially identical predecessor to OCGA § 9-6-21 where
“[t]he uncontroverted facts of this case clearly and unequivocally
established as a matter of law both express dedication of the roads
to the public use by the developers of the Mountain View Lake
Estates subdivision, and implied acceptance by the county
commissioners”). See also OCGA § 9-6-21 (b) (providing for citizens
of a county to apply “against the county board of commissioners” for
a “writ of mandamus against the parties having charge of and
supervision over the public roads of the county” to compel “the
building, repairing, and working of the public roads . . . up to the
standard required by law, so that ordinary loads, with ordinary ease
county is obligated to repair and maintain a road that has been dedicated to public use. 10 and facility, can be continuously hauled over such public roads”).6
Repairing and maintaining a public road places a significant
burden on counties, and this Court has explained that a mere offer
of the road to the public or use of the road by the public does not
suffice to impose this burden; county authorities must choose to
accept a dedication to take on the burden of maintaining the road.
As Penick explained:
The existence of a public road carries with it burdens on the county, of working it and keeping it in repair; and these burdens could not be imposed on the county simply by an individual dedicating his land for use as a public road, and by the public using the road for travel. Before a road can become a public road, there must at least be some recognition of it as a public road by the county authorities having jurisdiction over roads.
Penick, 131 Ga. at 391. See also Ga. R. & Banking Co. v. City of
Atlanta, 118 Ga. 486, 489 (45 SE 256) (1903) (“Streets are not an
6 This provision specifically providing the ability to mandamus counties
to repair roads was added in 1903 to the precursor of OCGA § 9-6-21. See Ga. L. 1903, p. 41. However, this Court has held that OCGA § 9-6-21 (b) is not “the exclusive authority under which a party can seek a writ of mandamus for road maintenance against a county board of commissioners.” See Burke County v. Askin, 291 Ga. 697, 698-699 (732 SE2d 416) (2012) (holding that the trial court “did not err in addressing the petition for writ of mandamus under OCGA § 9- 6-20,” the general mandamus statute). 11 unqualified benefit to a municipality; they impose responsibilities,
and the acceptance should be by some explicit act on the part of the
authorities, and not by vague, indefinite, and inconclusive actions
on the part of a body of citizens loosely called the ‘public.’”) (citation
omitted); Kelsoe v. Town of Oglethorpe, 120 Ga. 951, 953 (48 SE 366)
(1904) (“Before there can be a dedication to a municipality of a tract
of land laid out by the owner as a street to be used by the public, the
municipality must express its assent to the dedication by
acceptance. A private individual can not, by laying out streets
through his land, impose upon a municipality the burden of
maintaining the same for the use of the public; it has a right either
to accept or reject the proffered dedication.”). The county authorities’
acceptance of the road “may be express or implied as long as a clear
intent is manifested.” Ross, 235 Ga. at 310 (emphasis omitted). See
also Chatham Motorcycle Club, Inc. v. Blount, 214 Ga. 770, 773 (107
SE2d 806) (1959) (“This court is definitely committed to the
proposition that, to complete the dedication of land by the owner to
the public use as a street, road, or highway so as to make the county
12 or city or other political subdivision involved responsible for its
upkeep and maintenance, there must be acceptance of the
dedication by the proper public authorities, either express or
implied.”).
The cases cited above clearly answer the question we posed in
granting certiorari: public acceptance of a road alone does not
obligate a county to repair and maintain a road that has been offered
for public use; there must be some acceptance, either express or
implied, by county authorities to obligate the county to repair and
maintain a road.7
3. The plaintiffs argue that we should not follow Penick and its
progeny and should look instead to statutes and cases that address
7 This should not be construed as a holding that public use of a road can
never be considered as part of determining whether county authorities have accepted a road as a public road. See Penick, 131 Ga. at 390-391 (“The order of the county authorities adopting the favorable report of the committee appointed by them to investigate the question whether or not the road should be opened and made a public road, the working of the road and the building of the bridge on it by the county authorities, and the use of it by the public since it was first laid out, constituted sufficient proof to make it proper that the court should leave to a jury the question as to whether or not there had been an acceptance of the dedication by the proper county authorities, if the land was offered as a dedication.”). 13 different factual scenarios to conclude that mere public use of a road
that has been offered to the public by its private owner can obligate
the county to care for that road. Specifically, the plaintiffs point to
(1) OCGA § 44-5-230 and related cases, some of which expressly
apply OCGA § 44-5-230 and some of which do not cite the statute
but apply the same principle, saying that the dedication of a road to
the public can be completed by the general public accepting the road,
and (2) portions of OCGA § 32-1-3 defining “dedication” and “public
road” in a way that does not require acceptance by county
authorities. These statutes and cases, however, address questions
not at issue in Penick or in this case. Specifically, OCGA § 44-5-230
sets forth a private owner’s rights with regard to a road, and the
definitions in OCGA § 32-1-3 apply in Title 32 (and not Title 9,
where the mandamus statutes are found). Title 32 provides
requirements for county maintenance of the roads a county has
made a part of its “county road system.” Thus, the plaintiffs’—and
the Court of Appeals’s—reliance on this law is misplaced.
(a) OCGA § 44-5-230 and Related Cases
14 OCGA § 44-5-230 says:
After an owner dedicates land to public use either expressly or by his actions and the land is used by the public for such a length of time that accommodation of the public or private rights may be materially affected by interruption of the right to use such land, the owner may not afterwards appropriate the land to private purposes.
This statute and its predecessors have been cited in cases about land
owners’ rights to land that has been dedicated to public use, and—
following the statute—those cases have indicated that the
dedication of land to the public can be complete if the public accepts
the dedication. See, e.g., Smith v. State, 248 Ga. 154, 158 (282 SE2d
76) (1981) (citing Code § 85-410, a predecessor to OCGA § 44-5-230,
and explaining that “[t]o prove a dedication of land to public use,
there must be an offer, either express or implied, by the owner of the
land, and an acceptance, either express or implied, by the
appropriate public authorities or by the general public”); Carroll v.
DeKalb County, 216 Ga. 663, 666 (119 SE2d 258) (1961) (citing Code
§ 85-410, and explaining that “[t]he essentials of dedication to public
use are an offer, either express or implied, by the owner and an
15 acceptance, either express or implied, of the use of the land by the
public or public authorities”). Other cases not citing OCGA § 44-5-
230, but still addressing a private owner’s rights, have framed the
requirements of dedication of public property in a similar manner.
See, e.g., MDC Blackshear, LLC v. Littell, 273 Ga. 169, 170 (537
SE2d 356) (2000) (considering a private owner’s right to bar public
access to an alley and explaining that “[a] public dedication requires
an offer, either express or implied, by the grantor, and an
acceptance, either express or implied, by the public”); Chandler v.
Robinson, 269 Ga. 881, 882 (506 SE2d 121) (1998) (considering
private owners’ rights to bar access to a road on their property and
explaining that “[t]wo criteria must be established in order to show
that property has been dedicated: (1) the owner’s intention to
dedicate the land for public use, and (2) the public’s acceptance of
the dedicated property”);8 Lines v. State, 245 Ga. 390, 396 (264 SE2d
8 We note that although the issue in Chandler was whether the Robinsons could prevent the Chandlers from using a road on the Robinsons’ property, the case was framed as deciding whether “the roadway was acquired by the County.” Chandler, 269 Ga. at 882. This Court ultimately concluded
16 891) (1980) (addressing the rights of private owners to land that had
been used by the public and explaining that “[t]wo essential
elements for the dedication of land for public use are intention by
the owner to dedicate and an acceptance by the public of the land for
public use for which it is offered”).
Although the concept of “dedication” of roads to the public is
common to both the situation at issue in this case (i.e., determining
when a county is obligated to repair and maintain a road) and the
situation addressed in OCGA § 44-5-230 and related cases, the
dedication contemplated in OCGA § 44-5-230 and related cases
affects a private owner’s rights—specifically what estops a private
land owner from re-asserting private control of land she has offered
for public use—and does not address when the dedication of a road
to the public is sufficient to impose an obligation on a county to
repair and maintain the road. And this Court has made it clear that
a county is not obligated to repair and maintain a road simply
that there had been no offer to dedicate the land to public use, 269 Ga. at 883. To the extent Chandler can be read to indicate that public use alone can transfer ownership of a road to a county, we disapprove such a reading. 17 because public use has prevented a private owner from reclaiming
the road for private purposes. Penick explained:
Under the Civil Code [1895], § 3591 [a predecessor to OCGA § 44-5-230], if an owner of land expressly or by his acts makes a dedication of it for public use as a public road, and the property is so used for such a length of time that the public accommodations or private rights may be materially affected by an interruption of the enjoyment, such owner can not afterwards appropriate it for private purposes. However, the dedication of land by the owner thereof for use as a public road, and use by the public of such road as a route of travel, would not of itself make the road a public road so as to charge the county with the burden of its repair and maintenance, unless the dedication was accepted by the county authorities having jurisdiction over roads or there was evidence of their recognition of the road as a public road, showing acceptance.
Penick, 131 Ga. at 391 (emphasis added). Similarly, in Chatham
Motorcycle Club, this Court differentiated between what is
necessary “to complete the dedication of land by the owner to the
public use as a street, road, or highway so as to make the county or
city or other political subdivision involved responsible for its upkeep
and maintenance, [for which] there must be acceptance of the
dedication by the proper public authorities, either express or
18 implied,” from what is necessary to complete a dedication so that
“the law considers it in the nature of an estoppel in pais, which
precludes the original owner from revoking [the dedication],” for
which “acceptance by the public by public use is sufficient to
complete the dedication without acceptance by the public authorities
of the county.” Chatham Motorcycle Club, 214 Ga. at 773-775.
As Penick and Chatham Motorcycle Club explain, county
acceptance is necessary in obligating a county to maintain land that
was privately owned and offered for public use; the mere public use
of the road does not create the obligation. However, we acknowledge
that the analysis that determines a county’s obligation to maintain
land is similar in some respects to the analysis of whether a private
landowner’s offer of public use can estop that landowner from
revoking a public dedication,9 and that this Court has not always
9 For example, as Smith and Carroll indicate, a county’s acceptance of an
owner’s offer to dedicate the road to the public may also be a relevant consideration in deciding whether an owner may reclaim full control of land. See Smith, 248 Ga. at 158; Carroll, 216 Ga. at 666. But whereas county acceptance is necessary to obligate a county to repair and maintain a road, county acceptance is not required before an owner’s rights to restrict use of the property are affected. 19 been precise in explaining or observing the difference between what
affects the private owner’s rights and what affects the county’s
obligations. In particular, in Kaplan, this Court improperly cited
cases addressing private owners’ rights to land offered to the public
in a case dealing with a county’s obligation to repair a pipe. See
Kaplan, 286 Ga. at 560 (citing Smith and MDC Blackshear and
stating: “To prove a dedication of land to public use, there must be
an offer, either express or implied, by the owner of the land, and an
acceptance, either express or implied, by the appropriate public
authorities or by the general public.”) (citation and punctuation
omitted; emphasis added). However, notwithstanding its reference
to acceptance by the general public, Kaplan then properly
considered only whether the county had expressly or impliedly
accepted the public dedication. See 286 Ga. at 561-562. Thus,
Kaplan appears to have properly applied the law, and we disapprove
any reading of it that would suggest that acceptance by the general
public of an offer to dedicate land to the public can obligate a county
20 in the absence of the county authorities’ acceptance of that offer.10
Kaplan seems to have been at least partly responsible for the
Court of Appeals’s error in this case because the Court of Appeals
cited Kaplan to conclude that “an offer to dedicate may be accepted
‘by the appropriate public authorities or by the general public.’”
Morris, 365 Ga. App. at 328 (emphasis in original). For the reasons
discussed above, this was error, and we reject the plaintiffs’
contention that we should apply law addressing when a dedication
of land to the public affects a private owner’s rights in a case like
this one, which concerns a county’s obligation.
10 We made a similar misstatement in the municipal context in Hale v.
City of Statham, 269 Ga. 817 (504 SE2d 691) (1998), when, in a case dealing with whether a city had acquired ownership over an alley, we said: “Two criteria must be met before a public alley comes into existence by dedication: 1) the owner’s intention to dedicate the property to public use, and 2) the public’s acceptance of the property for that use.” Id. at 818. Like the Kaplan Court, however, Hale then correctly considered whether “the city accepted the alley.” 269 Ga. at 818. We therefore disapprove any reading of that misstatement in Hale in the same way we disapprove the reading of Kaplan. We similarly disapprove Rouse v. City of Atlanta, 353 Ga. App. 542 (839 SE2d 8) (2020), which the Court of Appeals cited here, which considered a city’s claim that land had been dedicated to the city and cited Kaplan to explain: “To prove a dedication of land to public use, there must be an offer, either express or implied, by the owner of the land, and an acceptance, either express or implied, by the appropriate public authorities or by the general public.” Rouse, 353 Ga. App. at 544. 21 (b) OCGA § 32-1-3
The plaintiffs also argue that we should conclude that Sumter
County has an obligation to repair and maintain the Subdivision
Roads because the roads have been “dedicated” as “public roads” as
those terms are defined in OCGA § 32-1-3 (8) and (24). The Court of
Appeals also cited these definitions in its analysis. See Morris, 365
Ga. App. at 326 n.13. Reliance on these definitions, however, is
inappropriate because OCGA § 32-1-3 applies only to Title 32 and
nothing in Title 32 obligates a county to repair and maintain
“dedicated” “public roads” as defined in OCGA § 32-1-3.
Title 32, the “Georgia Code of Public Transportation,”
“provide[s] a code of statutes for the public roads and other
transportation facilities of the state, the counties, and
municipalities of Georgia.” OCGA § 32-1-2. Within Title 32, OCGA
§ 32-1-3 (8) defines “dedication” as “the donation by the owner, either
expressly or impliedly, and acceptance by the public of property for
public road purposes, in accordance with statutory or common-law
provisions,” and OCGA § 32-1-3 (24) defines “public road” as “a
22 highway, road, street, avenue, toll road, tollway, drive, detour, or
other way that either is open to the public or has been acquired as
right of way, and is intended to be used for enjoyment by the public
and for the passage of vehicles in any county or municipality of
Georgia[.]” The plaintiffs argue that these definitions do not require
acceptance by the county authorities and therefore the Subdivision
Roads have been “dedicated” and are “public roads.”
The problem for the plaintiffs’ argument is that even if the
Subdivision Roads are “dedicated” “public roads” under OCGA § 32-
1-3—an issue on which we express no opinion—the first sentence of
that statute expressly says that the definitions provided in this
statute apply to the words “[a]s used in this title,” i.e., Title 32. And
nothing in Title 32 obligates a county to repair and maintain any
and all roads that have been “dedicated” and are “public roads.”
Instead, OCGA § 32-4-41 (1) establishes that the county has a duty
to maintain roads within its “county road system”: “A county shall
plan, designate, improve, manage, control, construct, and maintain
an adequate county road system and shall have control of and
23 responsibility for all construction, maintenance, or other work
related to the county road system.” And OCGA § 32-4-40 provides
that roads are made part of the “county road system” by county
resolution: “Each county shall, by resolution, designate roads to be
a part of its county road system; and such resolutions shall be
recorded in the minutes of the county.” See also OCGA § 32-4-1 (2)
(“Each county road system shall consist of those public roads within
that county, including county roads extending into any municipality
within the county, which are shown to be part of that county road
system by the department records on July 1, 1973, and any
subsequent additions to such county road system made by the
county.”) (emphasis added).
Thus, a county can make roads part of the “county road
system,” and the county would then be obligated to maintain those
roads under OCGA § 32-4-41 (1). These statutes do not, however,
support the plaintiffs’ assertion that mere public use can obligate a
county to repair and maintain a road. In OCGA §§ 32-4-1 (2), 32-4-
24 40, and 32-4-41, like in Penick, county action is required.11
Accordingly, none of the provisions in Title 32 cited by the plaintiffs
or the Court of Appeals obligate Sumter County to repair and
maintain the Subdivision Roads if Sumter County has not accepted
11 Part of the plaintiffs’ analytical error seems to be based on their belief
that if a road can be defined as a “public road” in any context or any sense of the phrase, the county has an obligation to repair and maintain it. That is not so. In support of their argument in this regard, the plaintiffs cite Chatham County v. Allen, 261 Ga. 177 (402 SE2d 718) (1991), in which this Court appears to have lacked precision in its discussion of the county’s obligation to care for public roads. First, the Court spoke too broadly when it said, without explaining what it meant by “public road,” that “[t]here can be no question, as Allen argues, that the county is obligated to maintain public roads.” Id. at 177. As explained above, this statement is true in some contexts, such as when a county has accepted the dedication of a public road, but it is not true in all contexts. Second, in defining “public roads within the meaning of OCGA § 9-6- 21 (b),” Chatham County cited the definition of “public road” provided in OCGA § 32-1-3 (24), without explaining why relying on this definition was appropriate. Chatham County, 261 Ga. at 177. Notably, however, Chatham County dealt with a different issue than the one presented here. The question in Chatham County was whether a county was obligated to care for “unopened, undeveloped, proposed roads,” and the Court concluded that because the roads were not open to the public, the county was not obligated to “open or maintain them.” Id. at 177-178. Here, by contrast, there is no dispute that the Subdivision Roads were open to the public. Thus, Chatham County does not control, and we need not, and do not, decide whether it was correctly decided. To the extent Chatham County can be read to indicate that a county must care for any “public road”—in any sense of that term—we disapprove that reading, and we also decline to extend the opinion’s unreasoned importation of OCGA § 32-1-3 (24) to the facts presented in this case.
25 their dedication as public roads. 12
Having concluded that our precedent answers the question
posed in the grant of certiorari in the negative—that is, that public
acceptance of a road will not obligate a county to repair and maintain
the road in the absence of express or implied acceptance from the
county authorities—and that the plaintiffs have not provided a
compelling reason to deviate from that precedent, we reverse the
Court of Appeals’s judgment remanding the case for the trial court
to consider the public’s acceptance of the dedication of the
Subdivision Roads.
4. We must remand the case to the Court of Appeals, however,
due to an ambiguity in the Court of Appeals’s instruction to the trial
12 Sumter County argued in the Court of Appeals that it had no obligation
to repair or maintain the Subdivision Roads because they had not been made a part of the “county road system” by county resolution, citing OCGA § 32-4- 40. The Court of Appeals rejected that argument, explaining: “Because a road may be dedicated to a county by implication, a lack of express designation cannot be determinative of whether a road is ‘public’ for purposes of the county’s maintenance responsibilities pursuant to the general and specific mandamus statutes.” Morris, 365 Ga. App. at 331. Sumter County does not challenge that conclusion or argue that Title 32 has superseded our cases providing that a county’s acceptance may be implied. 26 court to consider whether there was evidence of “recognition of the
streets as public streets.”
As described above, in its opinion, the Court of Appeals agreed
with the trial court that “the County did not expressly accept any
offer to dedicate the roads” but explained that “acceptance of a
dedication may be implied” and then concluded that the trial court
“failed to consider” whether the “evidence that the County
maintained the roads, using public funds, between 2010 and 2019”
“established that dedication had been accepted by the general public
or whether there was evidence of recognition of the streets as public,
as permitted by common-law provisions.” Morris, 365 Ga. App. at
323, 327-329 (emphasis added). This italicized phrase could be read
to address either the general public’s recognition, or the county
authorities’ recognition.
Notably, the Court of Appeals’s discussion about the County
maintaining the roads appears to focus on the County’s actions.
Moreover, in Penick—which, as discussed above, clearly established
that county authorities must accept the dedication of a public road
27 in order to be obligated to repair and maintain it—this Court used
wording similar to the italicized phrase the Court of Appeals used
in this case to refer to the recognition of roads as public roads by the
county, thus signifying implied acceptance by the county
authorities. See Penick, 131 Ga. at 391 (“[T]he dedication of land by
the owner thereof for use as a public road, and use by the public of
such road as a route of travel, would not of itself make the road a
public road so as to charge the county with the burden of its repair
and maintenance, unless the dedication was accepted by the county
authorities having jurisdiction over roads, or there was evidence of
their recognition of the road as a public road, showing acceptance.”)
(emphasis added). See also Savannah Beach, Tybee Island v. Drane,
205 Ga. 14, 14 (52 SE2d 439) (1949) (citing Penick and explaining
that “[d]edication and use by the public would not of themselves
make a street a public street so as to charge the municipality with
the burden of repairs and maintenance and liability for injuries
sustained by reason of the defective condition of the street, unless
the dedication is accepted by the proper municipal authorities or
28 there is evidence of recognition of the street as a public street”)
(emphasis added).
If the Court of Appeals, by using the italicized phrase in
Morris, meant to signify recognition by the public, then this decision
was erroneous for the reasons discussed above. If, however, the
Court of Appeals meant recognition by the county authorities—and
therefore implied acceptance by the county authorities—that
presents a different question. See, e.g., Ross, 235 Ga. at 310
(explaining that implied acceptance by county authorities can
obligate the county to repair and maintain a road).13 Because we
cannot discern whether the Court of Appeals reviewed the trial
court’s finding that the County did not impliedly accept the
dedication of the Subdivision Roads, we remand the case for the
13 As described above, the trial court did expressly consider and reject
the argument that Sumter County impliedly accepted the Subdivision Roads, including expressly considering evidence that the County expended funds and performed maintenance on the Subdivision Roads. We express no opinion on the correctness of the trial court’s conclusion that Sumter County did not impliedly accept the Subdivision Roads as public roads, as it is outside the scope of the question we posed in granting the writ of certiorari. See Coe v. Proskauer Rose, LLP, 314 Ga. 519, 530 n. 19 (878 SE2d 235) (2022) (“[B]ecause this issue is outside the scope of the questions posed in granting certiorari, we decline to address it.”). 29 Court of Appeals to consider and expressly decide this issue in a
manner consistent with this opinion.
Judgment reversed in part, and case remanded with direction. All the Justices concur.
Decided December 19, 2023.
Certiorari to the Court of Appeals of Georgia — 365 Ga. App.
323.
Alexander & Vann, Raleigh W. Rollins, Jr., H. Thomas Shaw;
Arnold & Hooks, Hayden Hooks, for appellants.
Ralph F. Simpson, for appellees.