Cannon v. Montgomery
| Decision Date | 15 May 1937 |
| Docket Number | 11782. |
| Citation | 192 S.E. 206,184 Ga. 588 |
| Parties | CANNON v. MONTGOMERY. |
| Court | Georgia Supreme Court |
Rehearing Denied July 10, 1937.
Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.
Suit by W. P. Montgomery against W. J. Cannon. To review an adverse judgment, defendant brings error.
Judgment reversed.
Syllabus by the Court.
1. The commissioner of game and fish of the state is authorized to establish and maintain a fish hatchery, and the possession of property acquired by him under lease for that purpose is the possession of the state.
2. While a suit cannot be maintained against the state without its consent, and this inhibition cannot be evaded by making an action nominally one against the servants or agent of the state when the real claim is against the state itself, and it is the party vitally interested, yet a suit may be brought against a state officer or agent where he acts illegally and in an unauthorized manner.
3. An injunction is not available for the purpose of accomplishing an eviction, or to prevent interference with realty by one already in possession; and, where an order granting an interlocutory injunction has this effect, the same will be set aside on proper exception to this court.
M. J Yeomans, Atty. Gen., and O. H. Dukes and Dave M. Parker Asst. Attys. Gen., for plaintiff in error.
Martin Martin & Snow, of Macon, for defendant in error.
W. P Montgomery filed a petition against W. J. Cannon, praying that the defendant be temporarily and permanently 'enjoined from remaining on said property or in the house located thereon.' The plaintiff alleged that he was the owner of certain described lands lying along and west of the Ocmulgee river in Bibb county and particularly in the river swamp, which lands embraced what is known as the 'brickyard lakes'; that there is located on said lands a brick dwelling house; that on December 15, 1936, the defendant, although he had no legal right upon the premises, and without any just claim or right, broke open the door thereto and entered the same; that immediately thereafter the plaintiff requested the defendant to vacate the premises and to leave his land, which defendant refused to do; that defendant is insolvent and unable to respond in damages for his illegal acts; that plaintiff is engaged in farming and in stock raising on his said land, and such house is needed as a residence for his employees; that plaintiff is engaged principally in raising hogs, and made all preparations to commence building hog houses and fencing in and around this house, and defendant's unlawful entry and occupancy makes it impracticable for plaintiff to commence such work; that plaintiff's employees are unwilling to attempt to move in this house so long as defendant occupies it; that plaintiff is without an adequate remedy at law, and can only obtain relief for defendant's unlawful seizure and trespass in equity; and that at the time of defendant's unlawful entry plaintiff was in possession of said premises. The judge granted a temporary restraining order. The plaintiff amended his petition by adding a paragraph setting up 'that said defendant did not enter said house for the purpose of inhabiting the same, but, without authority, is attempting to pose as a watchman or guardian of said property, including said house,' and by striking from the prayer in the petition the words 'from remaining on said property or in the house located thereon,' and inserting in lieu thereof the words 'from interfering with petitioner's use and enjoyment of said house and said premises, and that he be restrained and enjoined from breaking the locks of said house or entering the same.' The defendant filed his answer in which he denied the substantial allegations of the petition, and set up that he was rightfully in possession of the house and premises as an employee of the Game and Fish Department of this state, which held a valid lease thereon; that the plaintiff had purchased said premises subject to the rights of the state under said lease; and that the defendant used said house to sleep in while taking care of the premises. He filed also demurrers general and special. The Attorney General and two of his assistants, as state officials, filed the plea and answer and demurrers for the defendant, represented him on the interlocutory hearing, and sued out the writ of error in this case.
On interlocutory hearing the following appeared from the evidence: The Georgia Rural Rehabilitation. Corporation, one of the United States governmental bureaus, purchased certain farm lands or acreage in Bibb county, approximating 400 acres, and lying west of the Ocmulgee river, which included a series or chain of small lakes, known as the 'brickyard lakes,' which lay near or in the river swamp, and which had formed in the pits from which clay had been taken many years ago in the manufacture of bricks by the A. T. Small Brick Company, by river water overflowing therein. Thereafter, on July 30, 1935, this corporation executed a lease agreement with the Department of Game and Fish of Georgia, whereby that department acquired a leasehold interest or estate in about 70 acres of this land, including such lakes, for a period of ten years, with privilege of renewal, provided the use, occupancy, maintenance, and operation of the property was mutually satisfactory, 'for public use as a fish hatchery and recreation center.' This contract also provided that 'Failure on the part of the lessee to maintain, operate, and/or conduct the project as herein referred to, and to properly supervise its maintenance, operation, and use, shall constitute a breach hereof; in which event lessor shall have the right to terminate this lease and take possession of said premises.' Said federal bureau, having determined that the entire acreage purchased by it was not suitable for the purposes for which it had acquired the same, on December 24, 1935, executed a warranty deed conveying to the plaintiff the tract of 400 acres previously acquired by it in Bibb county. This deed recited that it was made subject to the lease, above referred to, between the grantor corporation and the Department of Game and Fish of this state. There was located on the land so leased a brick dwelling house; and, at the time Montgomery acquired title to the entire tract, subject to the lease, an employee or agent of the State Department was in charge of the part of the premises leased by it, as a sort of caretaker and watchman, and used and occupied said dwelling house. Immediately upon the execution and delivery of this deed, Montgomery took possession of the land conveyed, with the exception of that leased to the Game and Fish Department. Although the plaintiff contends and testifies that the State Department has abandoned its project of a fish hatchery or recreation center on these premises, the State Department contends that this is not the case, but that, while extensive development work had not yet been carried out, it was using said lakes to propagate certain fishes that naturally inhabited them, had taken some out for distribution, that it intended using the same, and that the defendant stayed upon the premises and looked after the same for the State Department as an employee and agent thereof. The judge 'ordered, that, until the case is tried before a jury, the defendant is restrained and enjoined from interfering with the plaintiff's use of said property and from breaking the locks on said house or entering into the same.' At the same time the judge overruled the demurrer to the petition as amended. The defendant excepted, assigning error on both orders.
1. A suit cannot be maintained against the state without its...
To continue reading
Request your trial