Davis v. Gurley , 44 Ga. 582 ( 1872 )

Warner, Chief Justice.

This was an action brought by the plaintiff-against the defendants, containing two counts, one for interfering with his right of common of pasturage, on lands granted by the State in the county of Union, and the other to recover damages for killing his stock. There was a demurrer to the declaration which the Court overruled, and, in our judgment, properly overruled. On the trial of the case, after hearing the evidence and charge of the Court, the jury returned a verdict for the plaintiff for $125 00. A motion was made for a new trial, which was overruled by the Court, and the defendants excepted. There is no evidence in the record that the defendants killed the plaintiff’s stock, which would, under the law, authorize the jury to find a verdict against them. That the unlawful interference with one’s right of common of pasturage is actionable when the right exists, is undoubtedly true, but the difficulty with the plaintiff in this case is, that the evidence in the record does not establish such right ■of common of pasturage against the defendants 5 or, if it does, that the defendants have unlawfully interfered with it.

Let the judgment of the Court below be reversed.