Box 13, Folder 12, Document 104

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Atlanta, Georgia 30303








Mr. Jack C. Delius ROBERT A. HARRIS
General Manager HENRY M. MURFF
Department of Parks SP ATTEN SSS
and Recreation
City Hall Annex
Atlanta, Georgia

Dear Sir:

I am in receipt of your letter of January 26, 1967 in
which you advised me that you received a letter from Mr. John
H. Gress, dated January 16, 1967. You then go on to quote the
letter and end up by requesting an opinion from me as to the
contents of the letter and such other germane documents and
consequences I find necessary to investigate in the premises.

To begin with, Mr. Gress is correct when he states that
the original deed of conveyance from G. V. Gress to the City of
Atlanta did make a recitation such as the one he alludes to in
his letter. More specifically, the recitation is made in a deed
of conveyance, dated April 14, 1898, between Mr. Gress and the
City of Atlanta, and reads in part as follows:

"It is understood and agreed that the said picture
shall be used for the benefit of the whole people,
and shall be kept open the year round, subject to
reasonable rules and regulations, and that only a
nominal entrance fee shall be charged, not to ex-
ceed ten (10) cents for each person, and that the
said building shall bear an appropriate sign indicat-
ing the battle which the painting represents, and
also that it was presented to the City of Atlanta by
the aforesaid party of the first part."

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Mr. Jack C. Delius

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I have a photostatic copy of this deed in the event you re-
quire further inspection. With respect to the deed itself and be-

sides the provision above quoted, the deed is what is referred to
as "honest on its face", that is, we have no reason to doubt the
validity of the instrument nor should we doubt its validity.
Also, I am of the opinion that not only a nominal consideration
was given for the picture (stated to be One ($1.00) Dollar in the
deed), but also that the additional consideration is sufficient
to give rise to the theory of a deed of gift which was duly ac-
cepted by the City of Atlanta.

With this in mind, the first question that poses itself is
whether or not Mr. John H. Gress, who purports to be the "only
living heir" of G. V. Gress, has the right to bring about a for-
feiture of the picture in question. I am assuming that the por-
tion of the letter from Mr. Gress that he is the only living heir
of G. V. Gress is correct. With this as an assumption, I am of
the legal opinion that no one, including Mr. John H. Gress, has
the right to create a forfeiture such as he envisages in his let-

My basis for this opinion is found in the case of City of
Atlanta vs. Jones, et al, 135 Ga. 376 (1910), at page 379, where-
in it was in part held:

"The Language of the deed constituted a covenant,
rather than a condition subsequent. Where an owner
of land conveys it to a city, and states in the
deed that it is to be used for a specified purpose,
he may have such an interest as to prevent its sale
or diversion from that purpose to others, or per-
haps he may have an action of covenant. But such
language alone does not create a condition subse-
quent, on breach of which a forfeiture results and
the original owner may recover the land. Devlin
on Deeds (2d ed.), 978 and notes; Warvelle on Real
Property (2d ed.), 8 317; Thompson v. Hart, 133 Ga.
540 (66 S. E. 270). It may be thought by many lay-
men that such language creates a condition subse-
quent, but it is well settled in law that it does
not do so. If parties desire that a forfeiture
shall result, or that an estate shall terminate be-
cause of the breach of a covenant or failure to use


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Mr. Jack C. Delius

the property for the purpose mentioned in the
deed, they should so state."

It is my opinion also that there is no language with
respect to that portion of the deed dealing with the nominal
fee which would give rise to a forfeiture inasmuch as no re-
versionary provision is contained in that portion of the deed.

We now have disposed of the easy part of the opinion.

The hard part is, what consequences, if any, arise
from the City of Atlanta's maintaining the current admission
price to see the Cyclorama? Once again, we refer to the
language in City of Atlanta vs. Jones, et al, wherein it was
in part held that the grantor "... may have an action of

There is very little law with respect to a breach of
covenant in Georgia and it is necessary for me to refer to
other legal precedents to determine what the consequences of
a breach of covenant are under these circumstances.

With this as a background, I am of the opinion that the
ordinary remedy for breach of a covenant is by an action at
law for damages. (20 Am Jur 2d 589). However, in a proper
case, equity will sufficiently enforce covenants or grant an
injunction to restrain their violation. (Ibid.). Therefore,
I am of the opinion without more, as will more fully be herein-
after set forth, that a proper party might bring an action
against us to enjoin us from charging the fee we are now charg-

The next question which addresses itself to us is: "Who
are proper parties to enforce the covenant?"

Please bear in mind that the language of the above quoted
portion of the deed states, "... the said picture shall be used
for the benefit of the whole people, and shall be kept open the
year round,... and that only a nominal entrance fee shall be
charged, not to exceed ten (10) cents for each person...." With
this in mind, I am of the opinion that this is the type of a



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Mr. Jack C. Delius

situation which permits a third party to enforce a promise made
for his benefit, and a covenant made for the sole benefit of a
class of persons not parties to it,may be availed of by an indi-
vidual of that class. (20 Am Jur492). In other words, we have
a third party beneficiary contract which can be maintained in
the name of any person who constitutes not only a citizen of
Atlanta, or Fulton County, or the United States, but arybody in
the world; which, being a rather large class, is, in my opinion,
a beneficiary of the Cyclorama. Therefore, I am of the opinion
that an injunction could be maintained by anybody in the world
to enforce the covenant as written.

I do not know exactly how long we have charged more than
a ten cent admission fee to the Cyclorama. I trust that you
will use your good office to determine when this practice began.
This factual determination by you is very important in the. light
of the next portion of this opinion.

Although we have a technical breach of a covenant, as set
forth above, I am of the opinion that the doctrine of estoppel
is applicable to the situation here involved with respect to the
enforcement of covenants. By this I mean that a person, or a
class of persons, may be estopped by conduct from asserting a
right to enforce a covenant. (20 Am Jur 2d 590). By this I
mean that if we could satisfy a Court of Law that the benefici-
aries of this covenant, by their inaction, acquiesced in the
charge of more than a dime, this would act as estoppel to prevent
them from enforcing the covenant. While acquiescence is spoken
of as estoppel, strictly speaking, it is no more than a part of
estoppel. By this I mean that I am inclined to believe that a
Court of Law would prevent anybody from initiating an injunction
against us because the entire class of beneficiaries had acqui-
esced to increased charges. Legally speaking, no set time is
necessary to constitute estoppel such as we have in this case;
rather, it would be that amount of time which induced us to act
to our detriment. It is my thought that ten years would be
sufficient, although I am reluctant to determine what a Court
would determine to be sufficient.
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Mr. Jack C. Delius

I know that this has been a lengthy opinion and one on
which you will probably need further elaboration; however, for
the purpose of recapitulation, my opinion is as follows:

(1) There are no words in the deed which would give rise
to a forfeiture;

(2) A suit might be filed against the City of Atlanta
praying an injunction be granted to prevent the further breach
of the covenant by any person;

(3) In the event such a suit is filed seeking an injunc-
tion, I am of the opinion that we could plead estoppel in this
case due to the acquiescence by the general public from asserting
the breach of the covenant at the time of its breach.

Should you need any further elaboration in this matter,
please feel free to call upon me.

With my kindest regards, I am

4 truly yours,

Thomas F. Choyce

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