165 Ga. 765 | Ga. | 1928
Whiteside filed a petition against T. W. Camp, sheriff, and John Croker, to enjoin Croker from seeking the enforcement of an order of the ordinary of Campbell County directing the petitioner to remove obstructions across an alleged private way beginning and running from “the public road in front of petitioner’s house and across plaintiff’s land into the land of a negro by the name of Sim Bryant and across the land of Sim Bryant to the home of Sim Bryant.” There was also a prayer that T. W. Camp, sheriff, be enjoined from executing the order granted by the ordinary in the case of Mrs. Morris against the petitioner. The defendant interposed a general demurrer, which was sustained, and the petition was dismissed. The plaintiff excepted. As stated in the brief of counsel for the plaintiff in error, “The question presented by the bill of exceptions for decision is: (1) Does the petition of G-. E. Whiteside set forth an equitable cause of action ? In determining that question the following questions must be decided: (a) Where a judgment of the ordinary directing the removal of certain obstructions from a private way has been obtained by the party in whose favor the prescription has ripened, and that party having abandoned said proceeding, can a stranger to the case demand an enforcement of such judgment, in an effort to ‘ harass ’ and to the irreparable injury of the defendant in the case ? (b) Do the placing of gates in a fence across a private way constitute a compliance with an order directing removal of the fence when bars in another fence on same private way on same property had traversed such easement for eight years and were not designated as such obstructions in proceeding to remove obstructions ?”
After a consideration of the record, it may be noted as to the
The trial judge did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed.