Campbell v. Deal

• Decision Date: 13 January 1938
• Docket Number: 12144.
• Citation: 195 S.E. 432,185 Ga. 474
• Parties: CAMPBELL v. DEAL.
• Court: Georgia Supreme Court

195 S.E. 432

185 Ga. 474

CAMPBELL v. DEAL.

No. 12144.

Supreme Court of Georgia

January 13, 1938

Rehearing Denied Feb. 18, 1938.

Error from Superior Court, Fannin County; J. H. Hawkins, Judge.

Suit by Rebecca Deal against Jimmie Campbell for an injunction restraining defendant from interfering with the free and uninterrupted use of a private way. To review a decree for plaintiff, defendant brings error.

Reversed.

On Motion for Rehearing.

Syllabus by the Court.

Where in an equitable petition the sole prayers for specific relief were that the defendant be enjoined from maintaining across a private way an obstruction which consisted of a fence completed before the filing of the petition, and that he be enjoined from interfering with the free and uninterrupted use of the private way, it was erroneous to overrule a demurrer which pointed out that plaintiff was not entitled to the injunction as prayed for.

Rebecca Deal brought suit in Fannin superior court against Jimmie Campbell, of Fannin county. Her petition, as amended, alleges that she is an aged woman, unable to do manual labor, the owner of a certain described four acres of land in said county, which adjoins the land of the defendant on the north, east, and south; that she and her predecessors in title were in constant and uninterrupted use for more than seven years before the closing thereof, by the defendant, of a private way, which is described, and which runs through an improved field of defendant on his farm; that said private way is the same now as originally appropriated, and has been the same during all the years the plaintiff, her agents and others, have used the same; that she and her agents have kept said right of way open and in repair; that although the plaintiff and her agents have used and kept in repair this private way for thirty years, the defendant, without any warning to her, has placed obstructions across it and destroyed its use by the plaintiff and her agents; that she has used every reasonable means to induce the defendant to remove the obstructions; that this private way is the only means of egrss and ingress from and to plaintiff's property, except through and across the cultivated lands of others, where no road has been established; that if such new road could be legally established, it would not afford the plaintiff a convenient and a reasonable means of ingress and egress to and from her property, in that it would increase the distance to her property, approximately one mile; that the closing of this private way has depreciated the value of plaintiff's property; that by reason of the foregoing facts she is unable to obtain a desirable tenant, unless the obstructions are removed; that 'that closing of said road has worked irreparable damage to plaintiff and her property,' and she 'is unable to get her firewood or anything hauled to her home, by reason of the closing of said road.' In paragraph 13 of the petition it is charged 'upon information and belief, that the said Jimmie Campbell has not sufficient property, above the homestead exemption of realty and personalty allowed by existing laws to respond to any judgment that petitioner may obtain against him in this behalf; that said defendant is married and has a family, and is entitled under present laws to avail himself of these exemptions, and he is otherwise insolvent.'

The plaintiff amended her suit by adding to paragraph 7 of her petition the following: 'Said two obstructions so placed over and across said private way consist of two wire fences of three strands each erected across said private way; one of which is adjacent to the road leading by the home of the defendant, and the other further down said private way in the direction of plaintiff's home.' By adding to paragraph 8: 'Upon several occasions between the time of the placing of the obstruction over and upon said private way and the filing of this petition this plaintiff both herself and through her son have personally interviewed the defendant and pointed out to him the fact that he closed the only means which the plaintiff had of getting to and from her property, thus practically destroying its value and rendering it impossible, because of the extended age of this plaintiff and her helpless condition, to longer occupy her premises, and has endeavored to induce the defendant to cease his efforts to close said private way.' By adding to paragraph 10: 'Plaintiff shows to the court that said private way is her only means of egress and ingress from and to her property and home, and that the closing of said private way has and will deprive her of any method of bringing to her residence such supplies and necessities of life as she requires, and has and will prevent her from going to and from her home, upon any mission whatsoever, except to walk. The closing of said private way makes it impossible for this plaintiff to obtain a tenant for her said premises, and has completely isolated said premises, with the consequent result that she can obtain no income therefrom, and has damaged and destroyed its value more than fifty per cent. There is a dwelling-house located upon said premises, which is now occupied by this plaintiff; but the closing of said private way, thus cutting off from plaintiff all methods of egress and ingress from and to her property, makes it impossible for her to obtain supplies and fuel and other necessities of life, rendering it impossible for plaintiff to longer occupy her said premises, and completely destroying the same for rental purposes. Plaintiff's property prior to the obstruction of said private way has been reasonably worth more than $300. Since said private way has been obstructed, and if said obstructions are permitted to remain therein, said property will not be worth more than one half of said sum.' By adding to paragraph 13: 'This plaintiff is advised and believes, and so charges, that the value of the property of the defendant does not exceed $750. Under the statutes of Georgia he is entitled to an exemption of $1,600, and for said reason plaintiff charges that the defendant is insolvent and unable to respond in damages for his acts herein complained of.' And by adding to paragraph 14: 'Soon after said defendant obstructed said private way by erecting wire fences across the same, and after this plaintiff through herself and her said son had interviewed the defendant, pointing out to him the result which the closing of said private way had with respect to her property, and urged the defendant to remove said obstructions, which he declined to do, this plaintiff caused said obstruction to be cut away and removed from said private way, by procuring her son * * * to cut and remove the same; whereupon the defendant procured to be issued a criminal warrant against her said son for the cutting and removing of said obstruction from said private way, and procured an indictment to be returned against him by the grand jury of said county, and has threatened to prosecute this plaintiff and her agents in the event she should further attempt to remove said obstructions from said private way, and said defendant immediately built said two wire fences across said private way, and has threatened to rebuild them should this plaintiff cause the same to be removed again.' This amendment was sworn to by the plaintiff. The plaintiff further alleged that by reason of the facts stated in her petition the defendant 'has created a nuisance, which is a continuing nuisance, is now continuing from day to day, and will continue, unless restrained and enjoined.' She prayed that a writ of injunction issue, commanding the defendant to desist from the acts complained of, and restraining and enjoining him from in any manner interfering with the free and uninterrupted use of the private way described in the petition by the plaintiff, her agents or assigns, and for such other and further relief as to the court may seem legal and proper in the premises.

The defendant filed demurrers, among the grounds of which were that jurisdiction of the subject-matter of the suit is vested in the ordinary, and not in the superior court; that...