7 Ga. App. 835 | Ga. Ct. App. | 1910
Mrs. Higginbothem brought suit against W. O. Bat-son and three others in the city court of LaGrange, to recover damages for trespass on her real estate. She sued for $1,000 as general damages, and $500 as punitive damages, and the jury gave her a verdict for $350 as general damages, and $180 as punitive damages, against W. C. Batson and one of the other defendants, W. H. Huguley; a nonsuit having been granted as to the other two defendants. A motion for a new trial was made by the two defendants, which was overruled, and they excepted. The defendants filed also a demurrer to the petition, on the ground' tnat me city court of LaGrange was without jurisdiction, as the suit was one respecting title to land, of which the superior court of the county had exclu
The suit arose on the following facts, briefly stated: Plaintiff alleged, that she held title to a described lot of land in the city of West Point, Georgia, and that she had been in the quiet, peaceable, and uninterrupted possession of this land, under a fee-simple title, for a period of more than thirty years, having it inclosed by a fence for that length of time; that on September 11, 1908, it was entirely inclosed by a wire fence; that on that date the defendants went to it in person, with a force of hands, and instructed them to tear down the plaintiff's fence around the lot and take possession of a strip of the lot, 24 feet in width and 173 feet in length, for the purpose of opening a street or alley; and, in pursuance of these directions and instructions, they did tear down the fence, took possession of this strip of land from the lot, levelled it off, and converted it into a street or alley of the city. She alleges that these acts were without her consent, and constituted a wilful and malicious trespass.
The defense relied upon was that the land in question was not the property of the plaintiff and was not in her lawful possession; that it was a street or alley of the town of West Point, and had been used as a street or alley for many years; that the plaintiff, without authority, had taken possession of this street or alley and had placed a fence around it; that the city council, of which the defendants were members, composing the street committee of the council, had directed them to have the fence removed, as an obstruction to the public street or alley -of the city, and that they had removed the fence and opened up the street or alley in pursuance of their authority as members of the street committee of the council, and in obedience to instructions given to them by the mayor and council of the city of West Point. There was no evidence as to the value of the strip of land in question, either before or after the alleged acts of trespass. It was shown that the value of the wire fence taken down, with the cost of restoring the same, was about $12.
The view that we entertain of this case makes it unnecessary to decide many of the numerous assignments of error raised by the record, and we will confine ourselves to a decision of the question of jurisdiction made by the demurrer to the petition, and of the question as to the character of damages recoverable, under the facts and the law applicable thereto.
2. There is much conflict in the evidence on the issue as to whether the title to and possession of the strip of land in question was in the plaintiff, or whether it had been used by the. city as a public street or alley. But this question has been settled by the verdict of the jury in favor of the plaintiff, and any discussion of the evidence on this issue would be profitless. Irrespective of this question, it may be conceded that the defendants, as officials of the city, had no right arbitrarily and summarily to take possession of the strip of land in question and to remove therefrom the fence which the plaintiff had put around it. The law provides for an orderly procedure appropriate to such matters, and municipalities, as well as individuals, must adopt this procedure, and not assert their rights, even if they have any, vi et armis. If in fact one or more of the defendants were guilty of the wrongs complained of, the plaintiff, as the owner of the premises described in her petition (and the jury, under the evidence, found that she was the owner), was entitled to recover damages as compensation for the injury done. If special damages resulted from the tortious act, the plaintiff would be entitled to recover this class of damages, if she alleged and proved this. General damages may be recovered without proof of any amount. Civil Code, §3910. This does not mean that the jury, in giving general damages for a tortious act, shall be permitted to
Judgment reversed.