This case is one in which the plaintiff seeks injunctive relief and punitive damages against the defendant for an alleged continuing trespass. The trespass, according to the averments of the petition, consisted of the defendant repeatedly constructing fences across a lot designated in the petition as Lot 1 of Block F in Pine Forest Subdivision and a public street abutting on the aforesaid lot to which the petition refers as Pine Forest Drive, thereby interfering with the plaintiff’s use of the lot and her free access to and use of the street.
*108 The initial question for decision in passing upon the sufficiency of the petition is whether it shows the plaintiff’s title to the lot or right of access to the street. The petition relates that in 1960 the plaintiff and Associate Builders, Inc., the corporation of which the defendant is the president and a stockholder, were coterminous owners of lands* fronting on the south side of Old Mitchell Bridge Road in Clarke County; that they held title to thejr respective tracts of land under deeds from different grantors; that the description of the lands each of their deeds purported to convey embraced a part of the lands described in the deed of the other. The parties were both in the process of developing their lands into residential subdivisions, the plaintiff’s to be known as Pine Forest and the corporation’s to be known as Forest Heights. In this situation they entered into a comprehensive parol agreement which, succinctly stated, was as follows: the plaintiff and the corporation agreed to employ two surveyors to lay out their respective subdivisions in conformity with the rules of the Federal Housing Administration; the plan agreed upon provided that a 100 foot wide drive be constructed south from Old Mitchell Bridge Road 300 feet through the parties’ lands to serve as a common entrance to both subdivisions, and that this driveway was to be constructed at the joint expense of the parties; that there was at the end of the driveway to be constructed by the plaintiff a driveway 50 feet wide through Pine Forest Subdivision known as Pine Forest Drive and the corporation was to build a drive to be known as Ferncliff Drive through its subdivision, Forest Heights, so that the two driveways would form an intersection of the 100 foot driveway and lead from one of the subdivisions to the other.
The agreement was that regardless of the location of the dividing line between the plaintiff’s tract of land and that of the corporation the lots and street shown on the surveyor’s plat as comprising Lot 1 of Block F would be the property of the plaintiff and the lots and street shown in the surveyors' plat as Forest Pleights would be that of the corporation.
The plaintiff contends the rule applicable to the case as made by the petition is: “Where a dividing line between coterminous
*109
owners is indefinite, unascertained, or disputed, the owners may by parol agreement duly executed establish the line, which line will control their deeds, notwithstanding the statute of frauds.”
Oliver v. Daniel,
The defendant insists the petition fell short of showing the parol agreement had the legal effect of establishing the boundary between the plaintiff and the corporation because it was not alleged the line was disputed, and that the parol contract constituted a mere exchange or swap of land. He cites as authority
Taylor v. Board of Trustees &c.,
We think that the allegation that the discrepancy and overlapping of the deeds existed when the oral agreement was entered into defining the boundary between the coterminous landowners’ tract in effect does allege the line was uncertain and undetermined at the time. In this connection see
Collins v. Burchfield,
However, whether the parol agreement be considered as one fixing a land line or an oral exchange of land it appears to be a valid contract under which the plaintiff has the right of possession and title to Lot 1, Block F of Pine Forest Subdivision.
The parol contract as set out in the petition did not have as its sole consideration the location of a boundary line, but was made upon other very ample consideration. The petition expressly alleges the oral contract was fully performed; that both parties went into possession of the respective subdivisions shown
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by their plats and each made valuable improvements; that the corporation conveyed part of its property, Ferncliff Drive, to the County of Clarke and the plaintiff conveyed a part of her property, Pine Forest Drive, to the City of Athens. Thus, if there was a parol exchange or swap of land it was consummated so as to come within the exception to the statute of frauds relating to parol contracts. “The statute of frauds does not apply to a contract’ for sale of land, which has been fully executed.
Code
§ 20-402 (1);
Varnell v. Varnell,
Moreover, “while a contract involving any interest in land must be in writing to bind the parties
(Code
§ 20-401 (4)), this provision does not extend to cases where ‘there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance.’
Code
§ 20-402 (3).”
Kinney v. Youngblood,
The petition relates the defendant willfully and maliciously went upon Lot 1, Block F of Pine Forest Subdivision and constructed a fence across part of the same and extending across Pine Forest Drive approximately 30 feet south of its intersection with Ferncliff Drive so as to interfere with the plaintiff’s use of the lot and the drive; that the plaintiff removed the fence only to have the defendant rebuild it in the same place as before. This court held in
Dumus v. Renfroe,
“Owners of property which abuts a public road have the right to the use and enjoyment of such road in common with all other members of the public, as well as other rights such as ingress and egress which do not belong to the public generally.”
Southern R. Co. v. Wages,
The defendant, plaintiff in error here, contends that since the function of an injunction is to restrain, not compel, and this court is committed to the doctrine that a purely mandatory injunction will not be granted, and that compliance with the injunction in the present case would compel the plaintiff to remove the fence, the trial judge erred in overruling the demurrer which challenges the sufficiency of the petition to set forth a cause for injunction.
“While fully recognizing the rule that mandatory injunctions will not issue . . . yet where, as here, a continuing injury could be stopped-, although in stopping it the wrongdoer would be required to take affirmative action, the injury may be enjoined.”
Ellis v. Campbell,
The petition sets forth a clear case of wilful and continuous trespass committed by the defendant in repeatedly constructing fences upon the plaintiff’s Lot 1 in Block F and upon Pine Forest Drive so as to materially interfere with her possession and use of the lot and of the public street adjacent to the lot.
The petition is sufficient as against a general demurrer to set forth a cause of action for a continuing trespass and the plaintiff’s right of punitive damages by reason of the defendant’s commission of such trespass. “One whose means of egress from and ingress to his property abutting on a public highway is illegally and unnecessarily interfered with by the placing of obstructions in and the plowing up of the portion of such way lying in the highway by another, not the public authority charged with the duty of maintaining and keeping in repair such highway, suffers a special injury and may maintain an action for damages therefor against the wrong-doer, his injury being different from that suffered by the public at large, although such obstruction and interference may also constitute a public nuisance.
Brunswick & Western R. Co. v. Hardey,
The defendant contends that the petition discloses there was a dispute between the corporation and the plaintiff as to the *113 title of Lot 1, Block F at the time the alleged trespass was committed and that the defendant erected the fence across the lot and in the street in good faith, incidental to the assertion of such right on the part of the corporation. There is nothing in the petition to indicate any dispute as to the title of Lot 1, Block F upon which the trespass was alleged to have been committed existed, or that the defendant was at the time asserting any right or title on behalf of himself or anyone else.
The trial judge did not err in overruling the demurrers to the petition.
Judgment affirmed.