CourtListener 10679978

Gesamter Gesetzestext

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.

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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

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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

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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

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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.

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

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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

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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

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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.
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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).
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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

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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.”).
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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

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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

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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

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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.
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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

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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

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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.
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(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

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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-

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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.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: December 19, 2023