165 Ga. 655 | Ga. | 1928
Williams filed a petition seeking damages from the Seaboard Air-Line Railway Company for injuries alleged to have been inflicted by a continuing nuisance and continuing trespasses upon certain property of the plaintiff in the city of Columbus. The action was equitable in its nature, it being alleged that tlie plaintiff had no full and adequate remedy at law. The prayers were: (1) That the petitioner have judgment against the defendant for the sum of $2,400 for his damages caused by being deprived of his full, free, and unobstructed use and enjoyment of his land by the acts of the defendant as set forth in the petition. (2) For a perpetual injunction restraining the railroad company from running and operating engines, locomotives and cars upon said railroad-tracks on petitioner’s land, and from interfering in any way with the free and full and unobstructed use by petitioner of his land, and from interfering in any way with the enjoyment thereof by petitioner. (3) For such other and further relief as the nature of the case might require. After describing the land of which the petitioner alleges himself to be the owner and in possession since July 25, 1913, and stating the grantee, date, and record of the muniments of title under which he claims ownership and possession, the petition alleges: (Paragraph 4) “On petitioner’s said'land there are placed and located two railroad-tracks composed of steel or iron rails and wooden ties on the ground, said
In paragraphs 8 and 9 it is alleged that the petitioner has a refinery for his business of refining and manufacturing cane syrup on his described premises, and that in the refining, manufacture, and care of the products of his business it is necessary that a high state of sanitary cleanliness be maintained. Par. 10. “By the running and operation of its engines and cars on the tracks of railroad on petitioner’s land as aforesaid, great volumes of smoke, noxious odors, and gases are emitted and thrown forth, and cinders and dust arise from such operation, and are and have been for the last four years continuously going upon, against, and into petitioner’s said plant and building, rendering it more difficult and expensive to_ petitioner to protect his products and keep and maintain them in a wholesome^ healthy, and merchantable condition than would be required but for the running and operation of said
The defendant demurred, both generally and specially. The special demurrers, which were addressed only to paragraphs 4, 5, 7, and 10 of the petition, were sustained unless they were amended by a named date; and the plaintiff declining to amend, those paragraphs were stricken. The plaintiff preserved exceptions pendente lite to that ruling. On the trial the court refused to admit certain testimony offered by the plaintiff, and upon motion awarded a nonsuit. It is alleged in the bill of exceptions that the error in excluding the testimony deprived the plaintiff of the right to prove his case as laid in the paragraphs of his petition remaining after striking therefrom paragraphs 4, 5, 7, and 10, to which remaining paragraphs
A motion was made to dismiss the main bill of exceptions, upon the grounds: (1) That it “only refers to the exceptions made and filed pendente lite, without specially assigning and pointing out any error of law because of the order sustaining said special demurrers.” (2) Because there is no specific exception specifically pointing out any error of law or fact because of the order non-suiting plaintiff and dismissing his petition. (3) That the exception “to which order and judgment of the court sustaining the motion and granting a nonsuit of plaintiff’s case and dismissing his petition plaintiff then and there excepted, and now here excepts, and assigns the same as error and says that the judgment and order and action of the court was and is error and contrary to law,” is insufficient “without following up said assignment by plainly and specifically setting forth such errors alleged to have been committed, there being no motion for new trial filed in said case.”
There is no merit in the motion to dismiss the main bill of exceptions. Error is properly assigned upon the exceptions pendente lite, to the judgment sustaining the demurrers; and the exception taken to the exclusion of the evidence of which complaint is made is sufficient under the ruling of this court in Lyndon v. Georgia Railway &c. Co., 129 Ga. 353 (58 S. E. 1047), which has been uniformly followed by this court. Where the purpose of a bill of exceptions is to correct a controlling error antecedent to the final judgment, particularity of specification is not required in the exception to the final judgment. There must be a valid assignment of error as to the error which it is claimed controlled the final judgment, but a mere general exception is sufficient as to the final judgment.
We think the trial court erred in sustaining the demurrers and striking paragraphs 4, 5, 7, and 10 of the petition, and that this error was so vital and controlling upon the final result that all further proceedings in the case were nugatory. A consideration of the petition as set forth in the statement of facts discloses
Ground (a) of the demurrer to paragraph 4 of the petition complains because the paragraph “fails to allege when said tracks were placed or located on said land.” The demurrer is itself defective. It does not point out wherein the paragraph of the petition is defective because of the lack of the allegation called for. It certainly does not disclose in what way the allegation is material in order for the defendant to make its defense. The plaintiff does not complain of the presence of the tracks on the ground. He says the land is his; presumably the tracks on his land are his tracks. The plaintiff says the defendant has no right to go upon his land for any purpose; and this includes the statement that the defendant has no right, merely because it has engines and cars, to run them on his tracks. Ground (b) of this special demurrer complains that paragraph four “fails to allege that said tracks were located or placed on said land without the consent of the owner thereof.” The action being one for the recovery of damages resulting from continuous and continuing trespasses during the period of four years immediately preceding the institution of the suit, and it being alleged that the plaintiff had title to the land and was in possession of it and that the defendant had no title or right of possession, of what possible materiality was it whether the tracks were placed there with or without the consent of the owner ? Conceding that the tracks were placed there by the owner himself, or with his consent, if the defendant had no right to use them it would be guilty of trespass if it did. This ground of demurrer is speaking in character. It assumes something which does not appear from the petition. Impliedly it assumes that if the owner consented that the tracks should be laid, the defendant had the right to use them, which would not by any means follow, because the owner might have consented that the tracks be laid, or he may have laid them himself for his own use or for the use. of some person or corporation to which he sustained contractual relationship; and yet this would not authorize the defendant,
Ground (a) of special demurrer 2 assails the fifth paragraph of the petition, because it is not stated therein for what period of time defendant has been running and operating its engines, locomotives, and cars over the tracks on petitioner’s land. For the reason, as already stated, that this special demurrer does not point out or suggest any reason why this statement is necessary to enable the defendant to make defense to plaintiff’s petition, this ground of demurrer is so defective as to be ineffective. The defendant is bound to know the truth as to how long it has been running its locomotives and cars over the tracks on petitioner’s land, if it has ever done so; and from the nature of the action it is only necessary for the plaintiff to allege that the defendant had done the things complained of within the four years provided by the statute of limitations. In Durrence v. Groover, 160 Ga. 680 (129 S. E. 29), it was held that “If repeated acts of wrong are done or threatened, so as to make the trespass a continuous one, they may be repressed in equity by injunctionand as to the point just now before us, it was held that “The allegation in the petition that the defendants ‘ did within the last few days, and during the year 1923, up to date,’ commit certain acts of trespass, is sufficiently definite
Demurrers which are speaking should be overruled. Woods v. Colony Bank, 114 Ga. 683 (40 S. E. 720, 56 L. R. A. 929). In Mathis v. Fordham, 114 Ga. 364 (2) (40 S. E. 324), this court held: “A ‘speaking demurrer’ is not good. A demurrer to a petition, presenting the point that a named person described as heir at law of one deceased was not joined as a party defendant, is of this character when there is nothing in the petition showing that the deceased left any such heir.” In the opinion it was said: “The second ground of the demurrer makes the point that Laura E. Garrett, one of the heirs at law of J. N. Darsey, deceased, was not sued. This is a ‘speaking’ demurrer, because it does not ap
Each of the demurrers in this case, by inference at least, assumes that the defendant had some kind of right to use the plaintiff’s tracks on the plaintiff’s land, whereas any such suggestion is wholly negatived by the allegations in the petition that the defendant has no right, title, or interest in the land or the tracks, and that in trespassing upon the plaintiff’s land by running over it it
The judge overruled the general demurrer, and exception to this judgment is the basis of the cross-bill of exceptions. In view of what lias been said as to the nature of the action and the suffw ciency of the allegations to entitle the plaintiff to relief, it is plain that the court did not err in overruling the general demurrer.
Judgment on main hill reversed; on cross-hill affirmed.