Mills v. Smith

1. The burden is on the plaintiff in error to show error which injured him. Accordingly, it is not reversible error for the trial judge to require the movant's counsel to incorporate in the brief of the evidence an unimportant and harmless statement.

2. Equity has jurisdiction to enjoin a continuing trespass.

3. There was no error in that portion of the charge complained of.

4. The evidence was amply sufficient to authorize the verdict.

No. 16118. MARCH 19, 1948. Mary E. Smith, Lillie Smith Crapps, and George Zaworskie filed an equitable petition against Mrs. Ottillie M. Mills to enjoin her from interfering with the plaintiffs' use of a certain street in the town of Rose Dew, in Chatham County, Georgia, in which they make substantially the following case: On July 4, 1887, Dr. L. A. Falligant subdivided a tract of land in Chatham County, and recorded a plat of the subdivision in the office of the clerk of the superior court of that county, showing the wards, lots, and streets thereof. A street 30 feet wide, known and designated upon the plat of the subdivided as Lee Street, runs north and south through the subdivided tract and has been continuously used by the plaintiffs and their predecessors in title and the other residents and property owners of the subdivision for more than forty years as a means of ingress and egress to and from their property in the subdivision, and this use has been public, uninterrupted, peaceable, and accompanied by a claim of title. The plaintiffs and the defendant now own lots in the subdivision, which they acquired from grantors holding under Dr. Falligant. The plaintiffs, Miss Smith and Mrs. Crapps, purchased front lot 10, Grant Ward, of the Falligant Subdivision, which is bounded on the west by Lee Street, by deed dated September 21, 1921. The plaintiff Zaworskie purchased back lots 8, 9, and 10, Grant Ward, of the Falligant Subdivision, which are bounded on the west by Lee Street, by deed dated January 10, 1921; also back lots 1, 2, 3, 4, and 5, Grant Ward, of the Falligant Subdivision, by deed dated October —, 1918. The defendant acquired her title from Elaine F. Monroe, and others, by a deed dated March 6, 1943. This deed conveyed to her front lots 1, 2, 3, 4, and 5, in Lee Ward of the Falligant Subdivision; and it also purports to convey to her, without any warranty of title, a portion of Lee Street, to wit: A strip 15 feet wide east of and adjacent to front lot 1 of Lee Ward, in the Falligant Subdivision. Front lot 10, Grant Ward, as owned by he plaintiffs, Miss Smith and Mrs. Crapps, and front lot 1, Lee Ward, owned by the defendant, are separated by Lee Street, each lot having a frontage of 500 feet on the street. The defendant, her agents, servants, and employees have endeavored to fence off and prohibit the plaintiffs from using the western 15 feet of Lee Street, which is adjacent to her front lot 1 of Lee Ward, and has threatened the plaintiffs with criminal prosecution if they enter upon that portion of the street. She has attempted to place obstructions in that part of the street, which the plaintiffs have removed so that they may have free passage through the street, but the defendant, her agents, servants, and employees continue to put obstructions in that part of the street, and the defendant is claiming title to the same and attempting to take and keep the possession and use of it to the exclusion of the plaintiffs and the other property owners of the subdivision who have the right to use it. If the acts of the defendant, and those acting for her, continue, it would constitute a continuous nuisance and would cause the plaintiffs irreparable damage, for which they would have no adequate remedy at law.

Besides for process, the prayers were: (1) that it be decreed that Lee Street in the Falligant Subdivision is an existing street for the use of the property owners and residents of the subdivision; (2) that the defendant be enjoined from obstructing the street, using it for purposes other than a street, and the commission of acts which will prevent the plaintiffs and the other residents and property owners of the subdivision from using it; and (3) for general relief.

The petition was demurred to generally upon the ground that its allegations were insufficient to state a cause of action for equitable relief, and specially upon several grounds. The court overruled all of the demurrers. To this judgment exceptions pendente lite were timely certified and filed, upon which error has been here assigned.

The defendant's answer admitted that the recorded map or plat of the Falligant Subdivision of 1887 did show a 30-foot street, designated thereon as Lee Street, and that the plaintiffs claimed lots in the subdivision which abutted the street. She alleged that the street was a swampy jungle, where three of the lots claimed by the plaintiff Zaworskie abutted it, and that the other lots claimed by him were on another abandoned street. She admitted that the street had been open as between her lot and that of the other two plaintiffs, and that they had a right to use and were using the east half of the 30-foot street at the present time, and as a neighborly act she had permitted them to use the west half of the street. She admitted that she was claiming that 15-foot strip (the best half of Lee Street) which was adjacent to her front lot 1, and said that she was the owner of it in fee. She denied that the street had ever been used by the public and alleged that most of it was at the present time a matted jungle. The answer further alleged that the street as it appeared on the map or plat had never been opened for use except that portion between her lot 1 and the lot claimed by the plaintiffs, Miss Smith and Mrs. Crapps; and as to this portion of the street she said that the plaintiffs, Miss Smith and Mrs. Crapps, only used about 50 feet as a means of ingress and egress from Back Street to their home. It was further alleged in the answer that the defendant, by and with the consent of all the plaintiffs, had placed a row of posts across the abandoned street to prevent certain unauthorized persons from using it for objectionable purposes, and that it had not been otherwise obstructed by her.

By its answer to questions submitted by the court, the jury found in favor of the plaintiffs, and based thereon the court rendered this decree: "In the above-named case, the jury having found a special verdict of facts upon questions submitted to it by the court, in conformity with said verdict and under the law applicable thereto, it is considered, ordered, adjudged, and decreed that the defendant, Mrs. Ottillie M. Mills, her agents, servants, and employees be and they are hereby permanently enjoined from obstructing the western fifteen (15) feet of Lee Street, adjacent to front lot one (1), Lee Ward, in Dr. Falligant's subdivision of the original Coffee Bluff Plantation, fronting Southward on the Little Ogeechee River in the town of Rosedew in Chatham County, Georgia, and from using said street for purposes other than those of a street and from preventing petitioners and other property owners and residents of said subdivision, their families, friends and customers from continuing to use the same as a street. It is further ordered and decreed that the plaintiffs recover from the defendant $37.45, court costs in this case for the benefit of the officers of the court."

The defendant filed a motion for new trial, which was later amended. The first four grounds of the amended motion are mere amplifications of the general grounds, and the fifth ground complains of the charge. The court overruled the amended motion. The case is here for review on exceptions to that judgment, to the judgment overruling the demurrers and to the order approving the brief of evidence. 1. Before he would approve the brief of evidence in the present case, and over the objection of the movant's counsel that it had no place in the brief and related to a ruling adverse to the plaintiffs in the trial court, which they should have excepted to and urged by cross-bill, the judge on motion of the plaintiffs' counsel, required the movant to incorporate this statement in the brief of evidence: "At the conclusion of the evidence, the court stated to counsel that it had prepared a list of questions to submit to the jury and would ask the jury to make their findings on these questions rather than on general verdict. The court then read the list of questions to the jury in the presence of counsel and the parties, and plaintiffs' counsel objected to submitting any questions on the ground that they would tend to confuse the jury, and to the third question on the ground it was immaterial and prejudicial. The court overruled the objections and submitted the questions to the jury, as will be noted in the record, and the jury found a verdict thereon." Assuming, but not holding, that the statement had no place in the brief, it does not appear that the plaintiff in error has been injured in any way by its inclusion. She did not then, and does not now, insist that this action of the trial judge, to which the statement relates, injured her in any way. It has for a long time been a settled principle of law in this State that the burden is on the plaintiff in error to show error which injured him. Brown v.Atlanta, 66 Ga. 71; First National Bank of Chattanooga v.American Sugar Refining Co., 120 Ga. 717 (48 S.E. 326);Studstill v. Growers' Finance Corp., 165 Ga. 304 (140 S.E. 859); Walker v. Hartford Accident Indemnity Co., 196 Ga. 361 (26 S.E.2d 695). In Brown v. Atlanta, supra, this court said: "When a plaintiff in error brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party." No injury having been shown, the exception is without merit.

2. The general demurrer to the petition was properly overruled. The allegations of the petition being sufficient to show not only the existence of a nuisance, but a continuing nuisance or trespass resulting from repeated efforts to obstruct the street in question, brought the case within the principle announced by this court in Russell v. Napier, 80 Ga. 77 (4 S.E. 857); Spires v. Wright, 147 Ga. 633 (95 S.E. 232);Dodson v. Evans, 151 Ga. 435 (107 S.E. 59); Town ofRentz v. Roach, 154 Ga. 491 (115 S.E. 94); Barham v.Grant, 185 Ga. 601 (196 S.E. 43); Sullivan v. Farlow,189 Ga. 186 (5 S.E.2d 641); Lockwood v. Daniel,193 Ga. 122 (17 S.E.2d 542); Hall v. Browning, 195 Ga. 423 (24 S.E.2d 392).

In Dodson v. Evans, supra, it was held: "But the unlawful closing or obstructing of a private way, like that described in the present petition, is a nuisance, injurious to the property owners whose property abuts on the way; . . and such an obstruction to a private way being not only a nuisance but a continuing nuisance, a court of equity has jurisdiction to interpose by injunction to prevent a continuance of the nuisance or the placing of further obstructions in the way." And inBarham v. Grant, supra, this court said: A land owner may maintain a suit in equity to enjoin further interference with his means of egress to and ingress from a public highway when such interference amounts to a continuing nuisance or trespass and where an injunction would prevent a multiplicity of suits.

The only two grounds of special demurrer argued in the plaintiffs' brief are without merit, since the allegations of the petition were sufficient to show the nature and location of the obstructions complained of, and that the damage which would result to the plaintiffs from a continuation of the nuisance or trespass would be irreparable. The other grounds of special demurrer, not having been argued or otherwise insisted upon, will be treated as abandoned.

3. Another assignment of error complains of this part of the charge: "Where streets have been laid out, if they are accepted and used by the public, they have the right to continue to do so, and these streets having been shown to have been used long enough, thereby become streets as far as these people are concerned, and they have the right to continue to use them unless there has been an extinguishment of that easement or an affirmative abandonment." The criticism lodged against this portion of the charge is that it took from the jury one of the principal issues in the case, and instructed them that the evidence had proved that Lee Street had been used long enough as a street to become a street as far as the parties to this case were concerned; and relieved the plaintiffs of the duty of having to prove their case by a preponderance of the testimony. If the plaintiffs had predicated their right to use the street in question upon a prescriptive right resulting from use for a specified period of time, then the charge would have been erroneous, but such is not the case here. They base their right to use the street upon an easement arising by grant in 1887 from Dr. Falligant, who subdivided a tract of land and sold the lots now owned by the parties by reference to a recorded plat. InAspinwall v. Enterprise Development Co., 165 Ga. 83 (140 S.E. 67), this court held: "If an owner of a tract of land divides it into lots, streets, and alleys, records a plat thereof, and conveys lots by reference to the plat which abut a particular alley, the grantee in virtue of the grant will acquire a private easement in the alley as appurtenant to the land for the purpose of affording ingress and egress to and from the lots." And inTietjen v. Meldrim, 169 Ga. 678 (151 S.E. 349), it was said: "Where a grantor sells lots of land and in his deeds describes them as bounded by streets as shown upon a plat of a subdivision of the grantor's lands, the grantor and those claiming under him by mesne conveyances are estopped to deny the existence of such streets as delineated on such plat." The pleadings and evidence of the parties to the instant case show that they acquired their lots in the subdivision from grantors claiming under Dr. Falligant, who sold by reference to the recorded plat of 1887, and the defendant's contention was that the plaintiffs had lost through abandonment their right to use the street in question. The court fully instructed the jury on the issue of abandonment, and one of the questions which was submitted to the jury for determination, and answered in the negative was: "Has that part of Lee Street in contest in this case been affirmatively abandoned by the lot owners and residents of said subdivision, so as to cause the use of said portion of said street to be vested in the owners of the adjoining property to the exclusion of all others?"

Such being the record, the charge complained of was not harmful error.

4. The evidence was amply sufficient to authorize the findings of fact made by the jury on the questions submitted by the court.

For the reasons stated in this opinion, the court did not err in any of the rulings complained of.

Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.