Georgia Marble Company v. Tucker, 43 S.E.2d 245

Georgia Marble Company v. Tucker

43 S.E.2d 245 | Ga. | 1947

1. A petition, alleging merely that a named defendant "claims" or "contends" that it is the owner of an interest in realty owned by the petitioner, falls short of stating a justiciable dispute as contemplated by section 1 of the Declaratory Judgments Act (Ga. L. 1945, p. 137).

2. Under the rule stated by this court in Mayor c. of Athens v. Gerdine, 202 Ga. 197 (42 S.E.2d 567), the Declaratory Judgments Act does not take the place of existing remedies. "It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest." Mayor c. of Athens v. Gerdine, supra.

Judgment reversed. All the Justicesconcur.

No. 15763. MAY 14, 1947. REHEARING DENIED JUNE 13, 1947. W. R. Tucker filed his petition in the Superior Court of Dawson County, alleging that: The petitioner claims right and title to described lands located in Dawson County. The Amicalola River traverses a part of the lands described. The defendant is Georgia Marble Company, a corporation, and it claims title to the right to use the water of said river and the land on either side for two hundred yards through a part of the lands described. The defendant has no title in fee to any of the lands. There is valuable timber on such lands and the petitioner contends that he has the right to cut and use the timber to the banks of the river; and Georgia Marble Company contends that it is the owner of the lands and timber thereon for 200 yards on either side of the stream. This forms an issue which should be settled by the court under Ga. L. 1945, p. 137. By entering a declaratory judgment the court can finally adjudicate title to the land and timber growing thereon. The petitioner and his named predecessors in title have been in possession of the lands under color of title for more than seven years prior to the filing of the petition. Possession has been evidenced by tenants living upon the lands and cultivating a part thereof. and under recorded deeds possession would extend to the outermost boundaries of the tract. The petitioner prayed for a *391 declaratory judgment that he is the owner of the lands described and has the right to cut and remove the timber, and that the defendant, Georgia Marble Company, be required to show cause on a named date why judgment should not be entered for the petitioner. The court issued an order requiring the defendant to show cause as prayed. The defendant's general and special demurrers and plea to the jurisdiction were overruled, and the defendant excepted.