Allen v. Potter , 153 Ga. 24 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

1. The plaintiff’s petition, as amended, set out a cause of action in trespass. She alleged title in herself to the. land, a trespass thereon by the defendants by cutting one hundred or more trees thereon, of the value of one hundred dollars, the erection of a wire fence cutting off the thirteen acres from the body of her land, and her ouster therefrom by the defendants. At the common law the plaintiff .must have been in possession, to recover in trespass. Now the true owner can sue in trespass though out of possession. Yahoola River Mining Co. v. Irby, 40 Ga. 479. The petition set out all the elements of an action of trespass, title to the land, unlawful cutting of trees thereon, and her unlawful dispossession from her land by the defendants; The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a cause of action. Civil Code, §4470; Markham v. Brown, 87 Ga. 277 (92 Am. D. 73); Athens Mfg. Co. v. Rucker, 80 Ga. 291 (4 S. E. 885); Satilla Mfg. Co. v. Cason, 98 Ga. 14 (25 S. E. 909, 58 Am. St. R. 287); Stevens v. Stevens, 96 Ga. 374 (23 S. E. 312). So the court did not err in overruling the general demurrer to the petition in this case.

2. The defendants demurred specially to the petition, on the ground that it did not set out the deed under which the plaintiff: claims title, or make profert of the same to the court. The reply is that the plaintiff claims under prescriptive title arising from twenty years of adverse possession. She does not set up title by deed; and this ground of the demurrer seems to be speaking in its nature. But in an action of trespass the plaintiff is not required to set out the muniments of title under which he claims. In such an action the plaintiff has to allege title only, and on the trial prove the same. In this respect the action of trespass stands upon the same footing as a claim to property, when the claimant is not required to set out the title under which he claims, or an abstract thereof. Jones v. Patterson, 138 Ga. 862 (76 S. E. 378). In complaint for land the object oí the abstract is not to show title in the plaintiff on the face of the pleadings, but only to give notice of what the plaintiff would rely on at the trial; and the complaint will not be dismissed on demurrer to the abstract of title annexed to the declaration. Yonn v. Pittman, 82 Ga. 637 (9 S. E. 667); Crawford v. Carter, 146 Ga. 526 (91 S. E. 780); Peeples v. Rudulph, ante, 17 (111 S. E. 548). Much less will complaint in trespass be dismissed because the plaintiff does not set out therein the muniments of title under which he claims, especially when she does set out the title in her complaint on which she relies.

The defendants demurred to the petition, because it seeks to enjoin a trespass upon land in the possession of a tenant; and because paragraph four of the petition complains of an injury to the tenant, and not to the plaintiff. This, if well taken, would not be cause for dismissing the whole complaint, but only so much thereof as refers to damage and injury to the tenant. If a tenant be in possession, and the trespass be such as injures the freehold, the owner may still maintain trespass. Civil Code, § 4473. The .petition sets up damage to the freehold, in cutting trees thereon and in the ouster and exclusion of the plaintiff from her lands. Cutting of timber on lands by a trespasser is an injury to the freehold, and there can be no greater interference with this property than the complete ouster of the owner therefrom. So the court did not err in overruling this ground of the special demurrer.

The third and last ground of the special demurrer is that the petition shows that the injury alleged to have been done was done to the tenant, and not to the plaintiff. What is said above disposes of this ground of the special demurrer.

Counsel for the plaintiffs in error, in their brief, make the point that the petition prays for injunctive relief, the grant of which would result in the dispossession'of the defendants and the admission of the plaintiff into possession of the premises in controversy. Russell v. Mohr-Weil Lumber Co., 102 Ga. 563 (29 S. E. 271); Vaughn v. Yawn, 103 Ga. 557 (29 S. E. 759); Glover v. Newsome, 134 Ga. 376 (67 S. E. 935); Mize v. Herring, 137 Ga. 815 (74 S. E. 534). Suffice it to say that this ground of demurrer was not set up by the defendants in their special demurrer, and was not passed upon by the court below. For this reason we can not consider it. Furthermore, it would furnish no ground for dismissal of the whole complaint, but only so much as sought injunctive relief. So die court dN not err in overruling the special demurrer filed by the defendants.

3. The amendments allowed by the court to the petition were clearly germane; and the one seeking to recover for mesne profits did not ,set up a new cause of action..

4. The verdict was sustained by the evidence, and was neither contrary thereto nor to the law. The court did not err in overruling the defendants’ motion for new trial.

Judgment affirmed.

All the Justices concur.