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Claim to land; declaratory judgment. Muscogee Superior Court. Before Judge Davis.
DUCKWORTH, Chief Justice.
1. Where a petition for declaratory judgment alleges conflicting claims to land and that the petitioners desire to erect structures thereon but wish to know if they have a good title, a proper case for declaratory relief is shown.
2. Where, however, such petition shows that the sale basis of the petitioners' claim of title is a purported clause in a deed from the owner to a third party providing that if the land is abandoned as a right of way the land will revert to the property from which it is taken, and such clause is meaningless and void because the grantor conveys all his land thereby and takes it from nothing to which it could revert, and also because a person or legal entity only can hold title to property, no cause of action is alleged. The court erred in overruling the general demurrers to the petition.
This is an action for declaratory relief in which the petitioners allege certain property deeded to Muscogee County by its predecessor in title and by Muscogee County to the State Highway Board of Georgia has ceased to be used as a right of way for a highway and consequently has reverted to the land from which the property was taken as shown by the attached deed from Muscogee County; that as the owners of the abutting property they are the owners of the land bow abandoned for highway purposes; that desiring to construct certain improvements thereon and to use the property for access to a railroad siding, and the defendant, Muscogee County, refusing to execute a quitclaim deed to them to perfect their title, they are faced with the possibility of litigation and its resulting expense and delay, or forgoing their present plans to re-locate their business and use this property and the abutting property in the re-location, or re-locating on another site less suitable and desirable than the proposed site; and that this is a proper case for declaratory relief to free them from uncertainty, doubt and insecurity with respect to their rights, status and conduct in regard to their future activities in re-locating their business. After a hearing on the demurrers, the lower court overruled the general demurrers, and the appeal is from that judgment.
1. Putting aside for the present any question as to the need for a petitioner to allege a right in himself that is legally valid, which will be treated in Division 2 of this opinion, we hold that the present petitioner shows a right to declaratory relief. Cohen v. Reisman, 203 Ga. 684 (48 SE2d 113). It alleges that both the petitioners and the defendants claim title to the land involved and that the petitioners desire to erect improvements thereon but wish to settle any uncertainty as to the title before investing in the improvements. This is a clear case of needing "the lights turned on" before stepping into darkness, and a declaratory judgment is the proper remedy. But we reject the apparent contention of counsel, as evidenced by quoting extensively from Anderson on Declaratory Judgments, 2d Ed., Vol. 1, Par. 318, p. 140, et seq., and citation of Georgia Cas. & Surety Co. v. Turner, 86 Ga. App. 418 (71 SE2d 773), and a long list of decisions of the Court of Appeals that whether or not the basis of petitioners claim constitutes a lawful right, can not be reached by demurrer. The demurrer challenges the legal sufficiency of the petition and the right of petitioners to have their dispute based thereon tried. If not, the demurrer requires a dismissal since there is no legal right shown.
2. The heart of the case is a purported reverter clause in the deed conveying the lands herein involved in fee simple from Muscogee County to the State Highway Department. That clause is as follows: "In case the right of way is abandoned as a highway location, same shall revert to the property from which it is taken." (Italics ours). No sound construction of this clause can overlook the words we have emphasized. First, this record shows that the county owned only the right of way which it conveyed in fee simple by its deed containing this clause. It must inevitably follow that the right of way was at that time taken from no other property, and that by its terms it could revert to no property except that from which it was by that deed taken, which was precisely nothing. We are not here dealing with a petition to reform the reverter clause; therefore we have no choice but to accept its unambiguous term, "property from which it is taken." We can not by judicial fiat change this term to make it read: "from which it was taken by the previous deed from Heard to Muscogee County." Indeed, we can not alter the clause, and as written it does not refer to the abutting lands since the county's deed did not take it from such lands.
While what we have said demonstrates that the petitioners as owners of the abutting lands received nothing under this reverter clause, we note further that only a person or legal entity can receive title to land; consequently, to revert to property is not vesting title thereto in the owners of that property. Although no reason appears why the county would wish to donate this land to just anyone who might own the adjoining lands, it is possible that the county wished to do that. Had that been the intention, the county could have said so by providing that it would revert to the owners of the abutting land. If the parties to the deed could not write these directions for reversion but deliberately employed terms that did not accomplish that result, this court will not so write for them contrary to the law that requires us to accept the clause as written.
For the foregoing reasons the reverter clause is too indefinite to be valid and is a nullity. Consequently, the petition with its exhibits, including the deed containing this clause, shows an its face that the petitioners have no title or interest in the subject matter of the suit, and it should have been dismissed an demurrer. The court erred in failing to do so.
Judgment reversed. All the Justices concur.
Foley, Chappell, Young, Hollis & Schloth, Richard Y. Bradley, for appellees.
Arthur K. Bolton, Attorney General, Richard L. Chambers, E. J. Summerour, Assistant Attorneys General, C. M. Evert, for appellants.
Friday May 22 20:31 EDT

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