Burk v. Tyrrell, s. 19189
| Decision Date | 14 February 1956 |
| Docket Number | 19203,Nos. 19189,s. 19189 |
| Citation | 212 Ga. 239,91 S.E.2d 744 |
| Parties | Reuben BURK et al. v. Fred G. TYRRELL et al. Fred G. TYRRELL et al. v. T. A. SWANSON et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The motion to dismiss the main bill of exceptions is denied.
2. The rulings of the court on the demurrers of the defendants to the petition as first amended, and on the plaintiffs' demurrers to the defendants' answer, as complained of in the cross-bill of exceptions, were not erroneous.
3. The allegations in count 2 of the petition, added by the plaintiffs' third amendment, were sufficient to show that the plaintiffs, as land-locked grantees, had an implied easement in a private way over the land of the defendants for the purpose of egress and ingress, and the court erred in sustaining the general demurrers of the defendants to this count.
4. Count 1 of the petition affirmatively showing that the plaintiffs' adverse use of the alleged private way over the defendants' land was for a period of less than 7 years, their claim of a prescriptive right to use the way was insufficient as a matter of law, and the court erred in not sustaining the defendants' general demurrers to this count.
5. The court having erred in dismissing count 2, and in not dismissing count 1, all further proceedings were nugatory.
McClure & McClure, Chattanooga, Tenn., Wade H. Leonard, Rossville, for plaintiffs in error.
Frank M. Gleason, Rossville, for defendants in error.
T. A. Swanson, Ruben C. Burk, and Laura Burk brought an equitable petition against Fred G. and Bernice Marie Tyrrell, seeking to enjoin them from interfering with the petitioners' use of a private way over the lands of the defendants, which was the sole way of ingress and egress by the plaintiffs from their land to a named public road. They asserted a right to use the private way by reason of prescriptive use, and because they had purchased their tract from T. A. Swanson, predecessor in title to the defendants' tract, who had executed a deed to them in 1950 to a tract they had been in possession of since 1946; and since the right of way over the land of the defendants was the only means by which they had access to the public road, an easement arose by implication of law. The general demurrers to the petition were overruled and certain special demurrers sustained, and on the defendants' motion the plaintiff Swanson was dismissed as a party. After the remaining plaintiffs had filed an amendment to their petition, the defendants' demurrers to the amended petition were overruled. To the defendants' answer, seeking affirmative relief against T. A. Swanson, the court sustained the demurrers of the plaintiffs. When the case came on for trial the plaintiffs filed an amendment, striking from the petition all allegations that they were entitled to a private way by reason of an easement arising by implication of law, and, designating the original petition thus amended as count 1, they added count 2, in which they asserted only a right to use the way because of an easement arising by implication of law, and thus left count 1 as alleging a right to use the way by reason of prescriptive use. The defendants renewed their general demurrers, and demurred to count 2. The court sustained the demurrers to count 2 and struck the same, but refused to sustain the general demurrers to count 1, and thereafter directed a verdict in favor of the defendants. The plaintiffs' motion for a new trial as amended, which assigned error on the direction of the verdict, was denied. The plaintiffs by main bill of exceptions assign error on the order denying a new trial, as well as on the antecedent rulings adverse to them. The defendants by cross-bill of exceptions assign error on the ruling on the pleadings which were adverse to them.
1. The defendants have filed a motion to dismiss the bill of exceptions because (a) the assignments of error are too vague, incomplete, indefinite, and uncertain to be considered as valid or proper assignments; (b) no assignment of error is made on the direction of the verdict; and (c) the amended motion for a new trial is not in the record.
There is no merit in any of these grounds. Error is assigned specifically and generally on the several rulings complained of, and the amended motion for a new trial, which is in the transcript of the record, contains an assignment of error on the direction of the verdict, and error is assigned on the order denying a new trial.
2. The defendants in their cross-bill of exceptions assign error on the ruling on their demurrers to the original petition and to the petition as amended prior to the filing of the third amendment, which added a second count. They also assert that the court erred in sustaining the plaintiffs' demurrers to a portion of their answer which sought affirmative legal and equitable relief against T. A. Swanson.
A consideration of these demurrers and the rulings thereon does not disclose that the rulings were erroneous. Even if the court erred in failing to sustain the special demurrers to the petition as amended on the ground of misjoinder of causes of action, such ruling was rendered harmless when the plaintiffs filed their amendment which set up a new count, and in which they struck all allegations in the first count as to their claim of an easement by implication of law, and left in count 1 their claim to a prescriptive right to use the private way. After the court had struck from the petition T. A. Swanson as a party, on motion of the defendants, they cannot complain of the striking from their answer of their prayers for affirmative relief against Swanson.
3. We come now to a consideration of the main bill of exceptions, which assigns error on the order striking count 2 of the petition. This count in substance alleged: In 1946 T. A. Swanson owned a tract of land consisting of 54 acres in Catoosa County, which fronted on the Alabama road, at which time the plaintiffs went into possession of the tract under an oral agreement of purchase. At this time, there was a way not over 15 feet in width, which ran from a portion of the tract that the plaintiffs agreed to buy, across the property of Swanson to said road, and which was the only means of ingress and egress from their land to a public road. This private way had been used and worked and maintained by Swanson since his purchase in 1923, and by the plaintiffs since 1946, as a passageway from their tract to the public road. In 1950 Swanson executed a deed conveying his tract to the plaintiffs, and in 1952...
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