Elliott v. Adams
| Decision Date | 18 July 1931 |
| Docket Number | 8259. |
| Citation | 160 S.E. 336,173 Ga. 312 |
| Parties | ELLIOTT v. ADAMS et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Sept. 17, 1931.
Syllabus by the Court.
Where judgment granted nonsuit, bill of exceptions need not be brought as fast bill, though injunctive relief was sought (Civ. Code 1910, § 6153).
The judgment sought to be reviewed being one granting a nonsuit and not one granting or refusing an injunction, the bill of exceptions will not be dismissed because it was not brought as a fast bill of exceptions under section 6153 of the Civil Code of 1910, although injunctive relief was sought in the action.
Judgment commanding removal of obstructions from alleged private way is not binding on landowner who was not party; in suit by landowner to enjoin trespasses, admission of judgment commanding removal of obstructions from alleged private way held error, where landowner was not party thereto.
A judgment of the ordinary, commanding the removal of obstructions from an alleged private way, is not a judgment in rem binding all the world; but is one in a proceeding quasi in rem, which does not bind an owner of land, who was not a party to the proceeding in which such judgment was rendered, from contesting the right of the plaintiffs in such judgment to use such way over the same. The trial judge erred in admitting the proceedings before the ordinary and the judgment rendered therein, as against the plaintiff who was not a party thereto.
Landowner who caused obstructions to be placed along way held not bound by judgment commanding removal of obstructions where she had no notice or opportunity to be heard; one physically present when judgment was rendered held not bound thereby where she had no notice or opportunity to be heard (Civ. Code 1910, § 825).
The plaintiff was not bound by the judgment of the ordinary, she not being a party to the proceeding in which it was rendered and not having any notice thereof prior to the judgment and no opportunity to be heard against its rendition, although she caused the obstructions to be placed therein. The record does not bear out the contention that the plaintiff was present when a certiorari sued out by the defendant to review said judgment was heard by the judge of the superior court but such physical presence alone would not render the judgment binding upon the plaintiff, as she had no notice or opportunity to be heard in resistance to its rendition.
To have prescriptive right of way, prescriber must have been in uninterrupted use of permanent road over land and must have kept it open and in repair for seven years; evidence held to warrant finding by jury that defendant had no prescriptive right of private way over plaintiff's land.
To entitle one to a prescriptive right of way over the land of another, it must appear that the prescriber has been in the uninterrupted use of a permanent road over the land, not exceeding fifteen feet in width, and that he has kept it open and in repair for seven years or more. The evidence introduced by the plaintiff in this case would have authorized the jury to find that the defendants were not entitled to the private way which they claimed over her land.
Granting nonsuit is error, where plaintiff introduces evidence substantially proving allegations of petition.
The defendants having filed a demurrer to the petition of the plaintiff, which was overruled by the court, to which judgment they did not except, and the plaintiff having introduced evidence substantially proving the case laid in her petition, the judge erred in granting a nonsuit.
Defendant's inchoate right of way over plaintiff's land could not be relied on in suit to enjoin repeated trespasses, where defendant in present suit and prior proceeding asserted prescriptive right of way (Civ. Code 1910, § 819).
The proceeding before the ordinary having been brought to remove obstructions from the private way which the defendants claimed to have a right to use over the plaintiff's lands, upon the ground that they had a prescriptive right of way, and not on an inchoate right to use this way under section 819 of the Civil Code of 1910, and no such inchoate right being set up against the present suit, said Code section cannot be relied upon to bar the plaintiff from prosecuting the present action, even if it were a good defense to the present suit, which we do not pass upon.
In suit to enjoin trespasses and enforcement of judgment, equity had jurisdiction to enjoin continuing trespasses.
The proceeding in the present case having been brought to enjoin the enforcement of the judgment obtained in the proceeding before the ordinary, and for the purpose of enjoining the defendants, Adams and Gardner, from committing repeated acts of trespass on the lands of the plaintiff, equity has jurisdiction to enjoin such repeated and continuing trespasses.
Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.
Suit by Cora Tilly Elliott against W. O. Adams and others. Judgment for defendants, and plaintiff brings error.
Reversed.
Granting nonsuit is error, where plaintiff introduces evidence substantially proving allegations of petition.
On February 18, 1929, Cora Tilly Elliott filed her petition against W. O. Adams, J. B. Gardner, and Jake Hall, the latter as sheriff of De Kalb County, in which she made this case: She is the owner of a described tract of land in the eighteenth district of De Kalb county, and has owned it since November 20, 1920. Adams and Gardner are threatening to enter upon said land and to move, or cause to be moved, certain felled timbers located thereon, in an effort to establish a way across the same. They are threatening to cross her land on foot, and with wagons or other vehicles, in a northeasterly direction at what is known as the Chamblee-Dunwoody road. They are threatening to trespass upon her said land, and to cause Hall, as sheriff, to enter upon her land in trespass of her rights, and to remove an obstruction in an alleged way over her land under and by virtue of some judgment or process to which she was no party, all in violation of her rights of property and contrary to law. Adams and Gardner are threatening to enter upon her land with the avowed purpose of using an alleged way which in fact does not exist. The sheriff is about to enter upon her land, in violation of her rights of property, by virtue of some alleged order to which she was not a party. There is no private way across her property, and such trespass will cause a breach of the peace. She prayed temporary and permanent injunction.
Adams and Gardner filed their answer, in which they denied the allegations upon which the plaintiff relied for the relief prayed. They further alleged that they, in conjunction with other parties at interest, filed with the ordinary of said county a petition against Dan Plaster, in which they set up that they were entitled to use a certain road known as the Gardner road running in a northeasterly direction to what is known as the Chamlee-Dunwoody road, which had been continuously used for approximately 20 years, and that in February 1927, Plaster had obstructed said road by felling trees and leaving them across said road at two or more places, and they prayed for judgment requiring the obstructions to be removed and the way restored; that the ordinary sustained their complaint, and rendered judgment in their favor; that Plaster sued out a writ of certiorari, which was overruled; that said judgment was final, no appeal was taken, and for this reason the plaintiff had no right in equity or in law to interfere with the execution of said judgment, and they are entitled to the free use of said way without interference by the plaintiff or any one else; that this private way has existed for 50 odd years or more, as they are informed and believe; that they have had the free use of the same without interference for more than 7 years; and that plaintiff is not entitled to any of the relief prayed. The judge of the superior court, on interlocutory hearing, denied an injunction; and this judgment was affirmed. Elliott v. Adams, 170 Ga. 433, 153 S.E. 72.
At the trial the plaintiff introduced evidence tending to establish the allegations of her petition. She introduced a deed from her father to her, dated October 20, 1920, to the land over which the alleged road was claimed by the defendants to be located. Her evidence tended to establish the following facts: She received a letter from W. O. Adams, one of the plaintiffs, asking her permission to open a road across this land, which she refused. There was no way or road across her land as claimed by the defendants. There was no sign of a way through her land. It had never been used or kept up since she owned it. No one had ever worked it since she had known it. The alleged road runs from the Adams road to the Dunwoody road. When the county graded the Adams road, it did not grade an entrance or approach to this alleged road. Where the alleged road would enter the Dunwoody road there is a deep ditch. Where it would enter the Dunwoody road there is a high embankment that the county built. These conditions have existed ever since plaintiff got the deed from her father. There might have been a little trail where this road is said to be located, which was never kept open. Adams has a way of ingress and egress to his place, and he does not have to go across the lands of plaintiff. She instructed her brother-in-law, Dan Plaster, to cut these trees across the way in question. There was no road, and she did not want one. She was never notified of the suit brought by Adams and others against Plaster for the removal of these obstructions. She did not know that such a trial was on.
W. H Meadows had known plaintiff's...
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