Sullivan v. Farlow , 189 Ga. 186 ( 1939 )

1. The allowance of the amendment merely made more certain the description of the easement claimed, and was not subject to the objection that it set forth a new cause of action.

2. Equity has jurisdiction to enjoin a continuing trespass.

3. No abuse of discretion was shown in granting the injunction.

No. 13089. NOVEMBER 14, 1939. Mrs. Farlow brought suit against Sullivan, alleging that she is the owner of a lot in the City of Augusta, Georgia, bounded on the east by the property of Sullivan; that the entrance to her property is through a driveway approximately ten feet wide on the east side of the lot, which said driveway is bounded on the east by the property of the defendant; that petitioner and her predecessors in title have kept said driveway in repair at their own expense for more than seven years; that a few days before the suit was filed, when petitioner's husband brought his car out of the garage to go to his office, he found, about two feet from the eastern edge of the driveway, an obstruction placed therein by the defendant, consisting of a cement post about five feet above the ground, and about six inches thick; that, having no other means of egress, he removed the obstruction; that defendant is preparing to place in the driveway a wooden fence which, in addition to disfiguring the landscape, will interfere with the ingress and egress of petitioner and her family into and out of her property; that the placing of a fence beyond the hedge now representing the western boundary line of defendant's property would leave too narrow a space between the fence and tree located on the sidewalk in front of petitioner's property, the tree being of many years growth, and petitioner is unwilling to cut it down; that the defendant now has located on his premises, on the lot immediately east of petitioner's property, posts and planks, with which he intends to erect a fence, and has threatened and is preparing so to erect the fence as to close the driveway as a means of ingress and egress for petitioner; and that the closing of the driveway was and is a nuisance and injurious to her property, and that the driveway is her only means of ingress and egress. She prayed that the defendant be enjoined from placing any obstruction in the driveway. The defendant, among other grounds of demurrer, protested, "that plaintiff's petition fails to show how much, if any, of his driveway protrudes over the land of defendant." The plaintiff amended her petition by alleging: "That petitioner, and her predecessor in title, Mrs. Jewel Bird White, have been in the uninterrupted use, for more than seven years, of a portion of the property of said defendant which has a frontage on McDowell Street of 20 inches, and runs back in a southern direction 29 feet along the property line of petitioner, the same being triangular in shape, and being 20 inches at its widest point, that is, on the northern line of said triangle, and running to a point 29 feet south of McDowell Street. That said driveway is a private way, less than 15 feet in width, and the said strip 20 inches on its northern point, and running to a point 29 feet south by McDowell Street, is the same property originally appropriated by petitioner's predecessor in title, and petitioner's predecessor in title and petitioner have kept the same open, and have repaired said strip for more than seven years prior to May, 1939. That the said property in which plaintiff claims a private way is over improved property." The defendant renewed his demurrer to the petition as amended. The demurrer was overruled. At interlocutory hearing, after evidence was introduced, the judge granted an injunction. The assignments of error are: (1) to the allowance of the amendment, over the objection that it introduced a new cause of action; (2) to the refusal to sustain the demurrer to the petition as amended; (3) to the grant of the injunction. 1. The petition seeks to enjoin the placing of obstructions in a driveway, which is stated by plaintiff to be "on the east side of her lot," and bounded on the east by the property of defendant. The amendment, as set forth above, is to the effect that a certain definitely described strip, a portion of the property of the defendant, has been in the uninterrupted use of the plaintiff and her predecessors in title for more than seven years, and contains the further allegation that it "is the same property originally appropriated by petitioner's predecessor in title." There was no special demurrer to the amendment, calling on the plaintiff to allege definitely whether the strip described in the amendment was a part of the driveway referred to in her petition, and we think that the amendment, fairly construed, is merely an effort to make more certain the description of the easement claimed, or, at most, to correct an error in the boundaries thereof as set forth in the petition. So construed, the petition did not set forth a new cause of action. Nothing to the contrary of this ruling was decided in Steadham v. Cobb, 186 Ga. 30 (196 S.E. 730). The principle that a suit to settle boundary line can not be amended into a suit to recover a tract of land from defendant under claim of title is not here involved on the face of the amendment; and of course, on demurrer, we must take as true what is alleged in the amendment. What the proof in support of it may show may be another matter, but such possibility can not affect a ruling on demurrer.

2. The demurrer was properly overruled. The allegations brought the plaintiff's case within the principle announced inFirst Christian Church v. Realty Investment Co., 180 Ga. 35 (178 S.E. 303), where a citation of most of the authorities bearing on this question may be found. As to the remedy of injunction, the petition as amended does not fall within the rule as applied in Campbell v. Deal, 185 Ga. 474 (195 S.E. 432), and West v. Chastain, 186 Ga. 667 (198 S.E. 736), and cit.; but rather within Kimbrell v. Thomas, 139 Ga. 146 (76 S.E. 1024), and Sapp v. Odum, 165 Ga. 437 (141 S.E. 201), and other cases of that character, in view of the allegations as to the nature of the injury to plaintiff, and the fact of its being a continuing nuisance.

3. Under the record presented, it was within the discretion of the judge to grant an interlocutory injunction.

Judgment affirmed. All the Justices concur.