56 S.E.2d 478 | Ga. | 1949
The allegations of the petition, seeking to enjoin the defendant from occupying described land, and to enjoin him from allowing a building that had been previously erected from obstructing a new sidewalk which had been constructed on each side of said building, failed to set forth a cause of action, and the trial court erred in overruling the defendant's general grounds of demurrer.
A demurrer, on general and special grounds, was interposed to the petition. The court overruled all of such grounds. To this ruling the defendant excepted pendente lite, and assigned error thereon in his bill of exceptions. *186
The defendant also filed his plea and answer and an amendment thereto. The plaintiff filed a demurrer to a part of said plea and answer as amended, which demurrer was sustained by the court, and to which ruling there was no exception.
Upon the close of the evidence, the court directed a verdict for the plaintiff, and a judgment was duly entered thereon. The defendant's amended motion for a new trial was overruled, and the case comes to this court for review upon his exceptions to that judgment. The defendant demurred on the grounds: (1) The petition sets forth no cause of action; (2) it sets forth no sufficient legal or equitable grounds for the relief sought; (3) the petition shows on its face, (a) that the sole object thereof is to seek a mandatory injunction, (b) that it is purely and solely an effort on the part of the plaintiff to evict the defendant from the possession of land the right to which is in dispute between the defendant and another party, (c) that the plaintiff has an adequate remedy at law, (d) that there is a nonjoinder of parties, in that the bank is acting in concert with the city in trying to evict the defendant, and therefore the bank is a necessary party; (4) that specified allegations as to a nuisance should be stricken, because the plaintiff has an adequate remedy at law for the abatement of any alleged nuisance.
"An injunction is not available for the purpose of accomplishing an eviction, or to prevent interference with realty by one already in possession; and where an order granting an interlocutory injunction has this effect, the same will be set aside on proper exception to this court." Cannon v.Montgomery,
The only allegation of trespass with which the defendant is charged consisted in remaining in possession and occupying the space appropriated by the plaintiff for sidewalk purposes. No other act of intrusion by the defendant against the plaintiff was alleged. Under the above mentioned decisions, physical occupancy cannot be enjoined, but acts which injure property, the use of it, or intrude upon another's physical occupancy can be enjoined. The allegations in the present petition are that the defendant has had and now has physical occupancy of the premises in question, and that the plaintiff has not had and does not now have physical occupancy. Therefore it follows that the defendant could not have committed any act intruding upon the plaintiff's occupancy, which is subject to being enjoined. A different question would arise if the defendant had placed a building on a sidewalk already occupied and maintained by the plaintiff, because such obstruction would be an invasion of and intrusion upon property already occupied by plaintiff. But here the defendant and his building have occupied the premises for a number of years, and the plaintiff has never had possession of the premises. The petition alleges that the plaintiff widened the street and paved a sidewalk on the premises "with the exception of the space now occupied by the building occupied by the defendant." Obviously, where a plaintiff widens a street and in so doing constructs a sidewalk up to a building, and then seeks an injunction to restrain the blocking of said newly constructed sidewalk by the building, such injunction would have as its only purpose the eviction of the defendant and removal of the building so the sidewalk could be completed, and would therefore be a mandatory injunction.
In the cases relied on by the city to sustain its position against the defendant's demurrer, the plaintiff's possession or his right of enjoyment of an easement had been intruded upon by the defendant, and the main purpose of the injunction sought was to enjoin such intrusion. In such cases the trial court could enjoin the intrusion and in so doing could incidentally require the removal of a fence or other obstacle. The facts of those cases differ from the allegations in the petition in the instant *189 case, where the only act of trespass charged was the defendant's physical possession, which cannot be enjoined.
The allegations of the petition failed to state a cause of action for the injunctive relief sought, and the trial court erred in overruling the defendant's general grounds of demurrer. All further proceedings were nugatory.
Judgment reversed. All the Justices concur.