181 Ga. 544 | Ga. | 1935
This case, if not identical in every respect, is practically the same, involving the same res, as that involved in Frazier v. Lee, 180 Ga. 385 (178 S. E. 722). In that ease the defendant Brazier was merely the agent of the Mutual Benefit Life Insurance Company, while in the present case the action is proceeding against the owner, against whom relief is sought of the same premises upon which the well in controversy is situated. Under the decision of this court in 180 Ga. 385, the allegations of the petition as amended were insufficient to charge such interest in the well and its equipment as would support this action by the plaintiffs. Hie allegations in the present case are not sufficient to set forth an easement by prescription in the well and its appurtenances. Ünder the ruling in Frazier v. Lee, supra, the allegation that the defendant Mutual Benefit Life Insurance Company knew that the petitioners were using the water from the well are insufficient and immaterial, unless it further appeared that the plaintiff had an easement. The court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed.
