Thompson v. Turner

| Ga. | Jan 16, 1883

JACKSON, Chief Justice.

This case was before this court in 58th Ga., 268. A new trial was then granted and the decree set aside, on the ground that the court erred in decreeing a perpetual injunction against obstructing the light of complainant’s windows, the question of their necessity to the reasonable use of the rooms lighted by them not having been passed upon by the jury.

On the second trial of the case, the jury returned the following verdict: “We, the jury, find for the complainant, and that the true line is the last survey of March 14, 1875, as given by City Survéyor Hogg, and further find that the obstructions are on Thompson’s land and should be removed.”

Thereupon, a decree was rendered that the verdict be made the decree of the court, and that the defendant “ forthwith remove the obstructions to the eastern windows of complainant's house,” and be forever enjoined from again erecting them.

The complainant, after the return of this verdict and the rendition of this decree, filed a petition to the effect that the defendant had not removed the obstructions, and prayed an attachment against her for contempt in not doing so.

To this she responded that she had removed them, and on this, it seems, issue of fact was joined, and, on this issue, before a jury, this verdict was returned, to-wit: “ We, the jury, find for the complainant in this, that the obstructions to said windows be taken down ; and that defendant have the right to erect such a building as she may think proper on said vacant half lot.” -

A motion was made to set aside this verdict, and grant a new trial on various grounds alleged in the motion, which was granted, and the complainant excepted, and that makes the case now before this court.

1. It appears from the facts disclosed in the record that the whole question which was submitted to the jury-turned on the construction of the verdict first above ■copied, and that whether Mrs. Turner was or was not in contempt depended on its meaning and that of the decree rendered thereon.

These were issues of law, and not of fact. They should Rave been passed upon by the chancellor and determined by him.

The whole question, it seems to us, was a question of contempt of the process of the court of chancery, and for the decision of the chancellor thereon. Such questions, so far as we are informed, in equity practice, are exclusively for the court. The gravamen of the appeal for redress is contempt of its final process.

It may be that the chancellor might,- under our own liberal jury system, refer to a jury a question of pure fact .as to whether the obstructions were removed, and how far, but it would be beyond all precedent and principle to have a jury construe for a court its own decree in connection with the verdict on which that decree was founded, in order to ascertain whether the defendant was in contempt of that court.

2. The facts here seem undisputed. Mrs. Turner moved the obstructions so as to be off the land of complainant, beyond all doubt. It was doubtful in the judgment of this court, before. See 58 Ga., 268. Was that a compliance with the last verdict and decree?

It would so seem, from the facts, that this court held that to entitle the complainant to have the use of this light and air-for his house, it must be shown that he could -not get it elsewhere over his own land, and that it was a •real necessity that he get it at this easement, and that he -cannot so have it if at reasonable cost he could substitute other lights to his building over his own property, and without at all interfering with his neighbor, and from the ¿act that the verdict says nothing about this necessity, but appears to rest the removal of the obstructions on the ground that they were on complainant’s land. They found “that the obstructions are on Thompson’s land and should be removed.” They did not find that the house needed.this light and air, and could not substitute other windows for it; but that the obstruction was on complainant’s land, and should therefore be removed, must be its meaning. The decree will be construed in the light of the verdict. It follows it, and, therefore, apparently means the same thing.

We conclude, therefore, that this verdict is contrary to law, and should be set aside: first, because the issue was not proper matter for a jury to pass upon ; and, secondly, because the court, in its charge, put a wrong construction on it.

Judgment affirmed.