Durrence v. Groover , 1925 Ga. LEXIS 229 ( 1925 )

Beck, P. J.

S. M. Groover brought his equitable petition against Eugenia Durrenee and her son, Henry Durrenee, and alleged that the defendants “did within the last few days, and during the year 1923, up to date, unlawfully enter upon certain lands of petitioner [describing them] and cut and carry away six or more large pine trees of the value of thirty dollars, and threaten to continue to cut and carry away more of the timber of petitioner from off of his land; . . that the acts of the defendants jointly and severally, in cutting and carrying away the timber of petitioner, and their continued threatened purpose so to do, constitute irreparable damages, for which this court is fully authorized to enjoin them.” It is alleged that it is impossible to “estimate the actual .value of the timber in dollars and cents, after the defendants have cut and carried away, or even'while they are cutting and carrying away;” that the damages “done and threatened to be done are irreparable.” The prayers are that the court grant an injunction restraining the defendants, jointly and severally, from doing any of the acts therein complained of, and for process.

The defendants demurred and answered. In the answer defendants set up title in themselves to the lands upon which the timber was cut, and denied that they entered upon petitioner’s land or cut any trees therefrom. They demurred upon the ground that the petition fails to show that petitioner is entitled to. any equitable relief; that the petition fails to show any joint action upon the part of the defendants committing the alleged trespass, and fails to show when the alleged trespass occurred; and upon the further ground that the petition fails to show wherein the trespass or alleged trespass constitutes irreparable damages. The court overruled the demurrer. Upon the trial the jury returned a verdict finding in favor of the injunction prayed, and awarded damages in the amount of $15. The defendants made a motion for a new trial, which was overruled, and they excepted.

We are of the opinion that the court properly overruled the general demurrer. It has been ruled that where there are repeated acts of wrong done or threatened, so as to make the trespass a continuous one, equity will grant an injunction to prevent and repress the continuous trespass. Martin v. Pattillo, 126 Ga. 436 (55 S. E. 240); Moore v. Daugherty, 146 Ga. 176 (91 S. E. 14); Wall v. Mercer, 119 Ga. 346 (46 S. E. 420); Stewart v. Davis-Sears Lumber Co., 132 Ga. 205 (63 S. E. 817); Loudermilk v. Martin, 130 Ga. 525 (61 S. E. 122).

The first three grounds of the motion for a new trial are the usual general grounds. The fourth ground is as follows: “Because on the trial of said case the court allowed the plaintiff to-introduce in evidence a plat of some land, purporting to be made by Josiah Kennedy August 27, 1897, as shown by exhibit ‘A.’ 1 fendants objected to the admission of same, on the grounds, as they contend, that it had not been recorded, proved as correct by any one, or proved to have been made from the notes of the surveyor by any one, or identified by any one as illustrating any issue in this case; and hence was irrelevant, immaterial, and illegal, as none of the parties to this case or any of their predecessors in title had anything to do with the making of said plat. But the court overruled defendants’ objections then and there made.” This ground of the motion recites the facts upon which the objection to the evidence was based, but there is not a distinct and direct allegation that the facts enumerated actually existed, and the assignment of error presents no question for decision by this court. .For the mere recital of facts as the basis of the motion for a new trial is not proof in itself of the existence of those facts. Owens v. Groves, 145 Ga. 287 (88 S. E. 964).

In the fifth ground of the motion for a new trial error is assigned upon the ruling of the court in allowing the plaintiff to testify that his predecessor in title had pointed out to him a land line, stating that he (the predecessor in title) owned to. that line; the line pointed out being the one to which the plaintiff claims that his land extends. The court erred in admitting this testimony over the objection that “it was hearsay as to the defendants.” The evidence was open to the objection made.

The rulings made in headnotes 5, 6, 7, and 8 require no elaboration. As the case is remanded for a new trial, no ruling is made upon those grounds of the motion relating to the sufficiency of the evidence. Judgment reversed.

All the Justices concur.