139 Ga. 734 | Ga. | 1913
Shelter brought his equitable petition against Lambert, seeking an injunction against the latter to restrain him from entering upon and cutting timber upon a designated lot of land. The petition set up title and possession in the plaintiff. The court below upon the interlocutory hearing found that neither the plaintiff nor the defendant had title, but granted an injunction restraining both parties from trespassing on the land, or committing any waste whatever on the same, until further order.
Under the ruling in the case of Downing v. Anderson, 126 Ga. 373 (55 S. E. 184), and other cases there cited, we are of the opinion that the court below erred in granting the injunction sought by the plaintiff against the defendant. The plaintiff failed to show either title or possession. "While he testified in broad and general terms that he had entered into possession at a date prior to the alleged acts of trespass on the part of the defendant, and had put his agent in possession, and that the latter had continued in possession from that date, the undisputed evidence in the case shows that the only acts upon the part of the plaintiff and his alleged agent, indicating possession, were the clearing of a small part of the land whereon a house might be erected, the placing there of a very small quantity of building timber, and the posting of certain notices warning the public not to trespass on the land. No part of the land was enclosed by the plaintiff or placed under cultivation, nor was any building erected on the land in which one might dwell. In the case of Downing v. Anderson, supra, it was held .that the plaintiffs failed to show prior possession, although they made an affidavit in which they asserted, upon information and belief, that their agent had erected houses on certain numbered lots, and that he was in actual possession of these lots; the
Judgment reversed.