Oliver v. Irvin , 230 Ga. 248 ( 1973 )

230 Ga. 248 (1973) 196 S.E.2d 429

OLIVER
v.
IRVIN et al.

27747.

Supreme Court of Georgia.

Submitted February 12, 1973. Decided March 8, 1973.

John A. Darsey, James L. Brooks, for appellant.

JORDAN, Justice.

The plaintiff alleged a continuing trespass on his land by the defendants and sought injunctive relief. He appeals an order of dismissal for failure to state a claim in equity "for the reason that there is an adequate remedy at law." Held:

1. We reiterate that "with the advent of the adoption of the Civil Practice Act (Ga. L. 1966, p. 609; 1967, p. 226; Code Ann. Title 81A) a complaint is not required to set forth a cause of action, but need only set forth a claim for relief, and that a complaint is no longer to be construed most strongly against the pleader. [Cits.] Furthermore, ``A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.' 2A Moore, Federal Practice 1706, § 8.13." Mitchell v. Dickey, 226 Ga. 218, 220 (173 SE2d 695).

2. Equity will enjoin a continuing trespass. Gainesville Midland R. Co. v. Tyner, 204 Ga. 535 (1) (50 SE2d 108).

3. It cannot be assumed that the plaintiff is not entitled to injunctive relief under any state of facts which could be proved in support of his alleged claim.

Judgment reversed. All the Justices concur.