202 F.2d 369 (5th Cir. 1953), 14257, Screven County v. Brier Creek Hunting & Fishing Club, Inc.

Docket Nº:14257.
Citation:202 F.2d 369
Party Name:SCREVEN COUNTY et al. v. BRIER CREEK HUNTING & FISHING CLUB, Inc.
Case Date:February 27, 1953
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 369

202 F.2d 369 (5th Cir. 1953)

SCREVEN COUNTY et al.

v.

BRIER CREEK HUNTING & FISHING CLUB, Inc.

No. 14257.

United States Court of Appeals, Fifth Circuit.

February 27, 1953

Rehearing Denied March 30, 1953.

Page 370

W. Colbert Hawkins, J. Henry Howard, Sylvania, Ga., for appellant.

Benj. E. Pierce, W. Inman Curry, Pierce Brothers, Augusta, Ga., Hilton & Hilton, Sylvania, Ga., and Curry & Curry, Augusta, Ga., for appellee.

Before HOLMES, BORAH, and RUSSELL, Circuit Judges.

HOLMES, Circuit Judge.

This appeal is from a judgment of the district court enjoining appellants, individually and as members of the Board of Commissioners of Screven County, Georgia, from entering upon the property of appellee for the purpose of tearing down fences or gates and opening a road or roads therein. The question of federal jurisdiction over the subject matter of the suit is the only one necessary to be decided upon this appeal.

These are the alleged facts: Brier Creek Hunting and Fishing Club is the owner of three thousand acres of land in Screven County, Georgia. The tract is entirely enclosed by fences, with no public road leading through the property. In August, 1951, appellants instituted an action in the state court wherein they sought to enjoin appellee from maintaining an obstruction in a road leading from the entrance of appellee's property in the direction of the Savannah River, the road allegedly having been dedicated to the public by its previous owners. A general demurrer to the petition was sustained by the state court, apparently on determination of improper venue, the Supreme Court of Georgia later affirming the decision. Screven County v. Reddy, 208 Ga. 730, 69 S.E.2d 186.

In the instant case in the court below, the appellee's petition alleged that appellants, in spite of the ruling of the Supreme Court of Georgia, wrote a letter to appellee notifying it to remove the obstructions on the road within fifteen days; also that appellants were preparing to enter the land and appropriate its property to the use of the general public; that to do so would deprive it of its property without due process of law, in violation of the Fourteenth Amendment. The district court overruled a motion by appellants to dismiss the suit, assumed jurisdiction of the controversy, and entered a judgment permanently enjoining the appellants as aforesaid, from which judgment this appeal was taken.

Where jurisdiction is asserted to exist on the basis of a federal question, that question must be a substantial one and must form an integral part of the complaint. A mere incidental or...

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