181 Ga. 317 | Ga. | 1935
Mrs. Lucile B. Hudson filed an equitable suit against Mrs. Weyman Carmichael and her husband, Weyman Carmichael, praying for injunction and other equitable relief. In substance she alleged that on the first Tuesday in August, 1933, she purchased at administrator’s sale 100 acres of land known as.the Evans land; that this tract of land is bounded on the south by the lands of Mrs. Weyman Carmichael; that the defendants, without any legal authority to do so, erected a dam on the land that belongs to Mrs. Carmichael, south of the Evans
In an amendment to her petition the plaintiff denied there was any such agreement as defendants claimed, but on the contrary she averred that the defendants were put on notice that she would not agree for this dam to be erected to such a height as to obstruct the free passage of water in that part of the branch running through the Evans place, now the property of plaintiff. To the defendants’ answer the plaintiff filed a demurrer in part as follows: (1) It sets forth no defense to this action. (3) The contract alleged, by which Mrs. Carmichael claims to have purchased lands of plaintiff covered by water from her dam is void, because : (a) It is for an interest in land, or an easement therein, and is entirely in parol and within the statute of frauds, (b) It fails to show that defendant has ever entered into possession of said land and made any .improvements thereon, (c) It fails to show any legal consideration paid therefor or agreed to be paid therefor. Other grounds of demurrer were sustained. The jury rendered a verdict in favor of the defendants. A motion for new trial was overruled, and the plaintiff excepted.
The court did not err in overruling the grounds of the demurrer set out in the foregoing statement. The answer shows an agreement and contract between the plaintiff and the defendant, which if substantiated, would be a sufficient defense to the plain
Error is assigned on the court’s allowing Weyman Carmichael, to testify, on direct examination as follows: “I have now completed that dam.' The total cost of it is over $1200 that I have already spent. I have worked it up pretty cheap.” The court did not err in admitting this testimony, in view of the alleged parol agreement between the plaintiff and the defendant concerning the erection of the dam. The construction of a substantial dam at the location alleged and the expenditure of money in making it was a question for consideration by the jury, and the evidence was properly admitted. This ruling is applicable to the assignment of error on the court’s admission of the evidence set out in the next ground of the motion for a new trial.
Error is assigned on the court’s allowing in evidence the following testimony of the witness Baldwin: “About this public utilities part of this proposition; that is, building this project or selling electricity to the public — anybody that wants it. I was hired in this case by Mr. Carmichael, and I knew that was an important part of it, and in his behalf and as his attorney I did take it up with the Public-Service Commission. I talked with Mr. Jud P. Wilhoit about it. I am just testifying to show his good faith in wanting to sell electricity to the public. I investigated how many people he would have to serve before he would be called a public utility, and I found you didn’t have to serve any certain amount. Just serve anybody, and all you have to do to be a public utility is to sell some electricity generated by power, and that makes you a public utility. That had to conform with the rates published by the Public-Service Commission; and that is all there is to it.” This evidence was objected to on the ground, among others, that it was irrelevant. The objection was well taken. The evidence was irrelevant, and could have been a basis for argument by counsel for the defendant that would have been hurtful to the plaintiff’s case.
The rulings stated in headnotes 4, 5, and 6 require no elaboration.
Judgment reversed.