185 Ga. 108 | Ga. | 1937
Two individuals instituted an action to enjoin a railroad company from committing certain alleged acts of trespass on described lands of the plaintiffs. The defendant filed a demurrer to the petition as amended, and an answer. At interlocutory hearing the judge overruled the demurrer, and, after introduction of evidence, granted an injunction to preserve the status until the final trial. The defendant excepted.
1. The plaintiffs alleged that ownership of the lands was in virtue of the will of a testator and certain deeds, copies of which were set forth, and continuous actual possession thereunder by themselves and their predecessors for more than twenty years, and until the commencement of the action. The petition, which was solely for injunction, was not subject to be dismissed on the fourth ground of demurrer which complains “that said petition fails to show, by the facts alleged and the abstract of title attached to the petition, that the plaintiffs have title to the land described in the petition.” Neither was it erroneous to overrule the motion to strike paragraph 14 of the amendment to the petition, seeking to extend the boundaries of the land alleged to be property of petitioners, so that the land should extend all the way to the bed of the defendant’s railroad.
2. The alleged threatened trespass consisted of entry, November 28, 1936, upon described land of petitioners, without right or title, and for the purposes (1) of tearing down a described fence permanently attached to the soil, partly inclosing petitioners’ cultivated field, and building a new fence through the field, and cutting off a strip of petitioners’ land lying parallel with the railroad, approximately 35 feet wide and 1500 feet long; (2) tearing down two
3. All that is said above will apply to the trespass numbered (3), relating to cutting and removing timber, except that it is alleged that the trespass if committed will cause irreparable damage, because a large portion of such timber is young pine and young hardwood now too small for commercial purposes, for which reason it is impossible to determine the present value thereof. In Gray Lumber Co. v. Gaskin, 122 Ga. 342, 349 (50 S. E. 164), it was said: “Inability to correctly estimate the damage after all evidence obtainable has been produced makes a case of irreparable damages, but difficulty in collecting evidence as to damage would not. ‘A trespass is irreparable when, from its nature, it is impossible for a court of law to make full and complete reparation in damages.5” The case of Justices of the Inferior Court of Pike County v. Griffin and West Point Plank Road Co., 11 Ga. 246, was cited for this proposition, where it was said by Nisbet, Judge: “It is well understood that equity will not interfere in a case of a mere trespass. As a general rule, it leaves the party to his legal remedy. But if there is anything special in the case — anything which renders the remedy at law impossible or incomplete — impossible, for example, when the trespasser is insolvent, or incomplete when from its nature it is impossible to prove the damage which grows out of the trespass, — chancery will put'forth its restraining hand, and by a decree compel the wrong-doer to desist.” It is said in 14 R. C. L. 344, § 46: ‘A remedy at law, to exclude
4. On the question of irreparable damage in a suit for injunction to prevent trespass upon realty, the sworn allegations of the petition may be considered as evidence at the interlocutory hearing. Saint Amand v. Lehman, 120 Ga. 253 (4) (47 S. E. 949); Roberts v. Roberts, 180 Ga. 671 (3) (180 S. E. 491); Spivey v. Pope, 180
5. Treating the general demurrer as referring to the petition as amended as alleging a cause of action for injunction to prevent the cutting of small timber, the demurrer, being general only, was properly overruled. But the judgment rendered after hearing evidence was too broad, and, under the principle stated in the preceding divisions, should have been confined to the grant of injunction only as to the cutting and damaging of the timber.
6. The plaintiffs relied, in part, upon prescriptive title to the land on which the fence and houses were located, and which the defendant claimed were a part of its right of way. The prescription was in part by claim of possession of William B. Gunn as life-tenant (plaintiffs being named as tenants in remainder) under the will of John B. Gunn. During his possession William B. Gunn executed the paper set forth in the cross:bill of exceptions, and made the declarations, therein set forth, both tending to show an admission by William B. Gunn that the fence and buildings encroached upon the right of way of the defendant, and that his use thereof was only permissive. Held:
(a) The evidence was competent as tending to show the character of the possession, which was a material question in the case.
(&) Neither the life-tenant, William B. Gunn, nor his legal representative was a party to the case. In these circumstances the witness Hargrett, agent for the defendant railroad company, was not incompetent under the Code, § 38-1603 (relating to competency of witnesses), to testify to the declarations of William B. Gunn, on the ground that he was dead.
(c) Nor was it erroneous to admit the testimony of Hargrett over the objection that the railroad company, having no title at the
Judgment on the main hill of exceptions reversed in part and affirmed in part. Judgment on the cross-hill of exceptions affirmed.