Ga. R. & Banking Co v. Gardner

• Citation: 118 Ga. 723,45 S.E. 600
• Court: Supreme Court of Georgia
• Decision Date: 30 October 1903
• Parties: GEORGIA R. & BANKING CO. v. GARDNER et al.

45 S.E. 600

118 Ga. 723

GEORGIA R. & BANKING CO.

v.GARDNER et al.

Supreme Court of Georgia.

Oct. 30, 1903.

ACTIONS — CONSOLIDATION — RES JUDICATA— CONDEMNATION PROCEEDINGS—TRESPASS.

1. Where, pending an action against a railroad company for trespass to land, the company makes application to have the land condemned as the property of the plaintiff in the action for trespass, such application, there being no award made by the appraisers, and consequently no appeal from an award, is not such a suit as should be consolidated with the action for trespass. Until an award has been made, and an appeal taken therefrom, there is nothing in court to be tried in the condemnation proceeding. Such condemnation proceeding is no bar to the action for trespass, nor is the action for trespass merged in the condemnation proceeding.

2. One who enters upon and injures the land of another, though a trespasser, is not liable for the expenses of litigation in an action for damages for such injury, when the acts causing the injury were done in good faith, under the honest belief that the land belonged to the former, and when he has not been stubbornly litigious, or caused the plaintiff unnecessary trouble or expense.

(Syllabus by the Court.)

Error from Superior Court, Richmond County; E. L. Brinson, Judge.

Action by M. G. S. Gardner and others against the Georgia Railroad & Banking Company. Judgment for plaintiffs. Defendants bring error. Reversed on terms.

Jos. B. & Bryan Cumming, for plaintiffs in error.

Wm. H. Fleming, for defendant in error.

FISH, P. J. The history of this litigation is, in brief, as follows: In 1896 the Georgia Railroad & Banking Company commenced the grading of the land in question for the purpose of constructing thereon an additional track. Mrs. Gardner had the employes of the company arrested for trespass, and threatened to have other of its agents arrested under a similar charge. The company brought an action to enjoin her from interfering with the work mentioned, and to require her to set up her legal rights in the premises. The company claimed the land under a deed made to it by Hale in 1835. Mrs. Gardner claimed it under a deed to her from a grantee of Hale made subsequently to the deed to the company, and under prescription. The main questions passed upon by the jury in the trial of that case were the width of the company's right of way under the Hale deed and the extent and character of Mrs. Gardner's possession. The findings of the Jury were in Mrs. Gardner's favor, and settled the title to the land in her. Upon a review of the case by this court at the instance of the company, the judgment of the trial court was affirmed. Georgia R. Co. v. Gardner, 113 Ga. 897, 39 S. E. 299. The present action was then brought by Mrs. Gardner and others against the company for damages for trespass in making the gradings, etc., and upon the first trial there was a verdict against the company. It brought the case to this court, where the judgment below was reversed. The rulings then made were: "(1) One who enters upon and injures another's land is not, though a trespasser, liable for punitive damages, when the acts causing the injury were done in good faith, under the honest.belief that the land belonged to the former, and there was nothing in the manner of doing such acts to indicate an intention to wantonly disregard the rights of the true owner. (2) It was, in the present case, erroneous to give in charge to the jury section 3906 of the Civil Code of 1895, which authorizes the giving of such damages in cases of tort where there are aggravating circumstances." Georgia R. Co. v. Gardner, 115 Ga. 954, 42 S. E. 250. Subsequently to the bringing of the present action the company instituted, under a provision of its charter (Pr. Dig. 331, 358), a proceeding to condemn the land in question, and the plaintiffs in the present case sought to enjoin such condemnation proceedings. The trial judge refused to grant an injunction, and his judgment was affirmed by this court. 117 Ga. 522, 43 S. E. 863. On the second trial of the suit for damages there was a verdict in favor of the plaintiff for $2,689.20. The railroad company made a motion for a new trial, which was overruled, and it excepted.

1. In this last trial, now under review, the railroad company sought to stay the case, and have it superseded by and merged in the condemnation proceeding, and offered an amendment for that purpose. The amendment was disallowed, and the company excepted pendente lite. The company offered in evidence the record of the suit in which the Gardners sought to enjoin it from condemning the land in question, for the purpose of showing that this action for damages was merged in the injunction case. The court rejected such record, and of this ruling complaint was made in the motion for a new trial. We do not think either of these rulings was erroneous. The pendency of a former suit for the same cause of action, between the same parties, in the same or any court having jurisdiction, is a good cause of abatement. Civ. Code 1895, §§ 3737, 5094. But there is no provision of law for pleading the pendency of a subsequent suit in abatement of the plaintiff's action, especially when such subsequent suit is instituted by the defendant. Id. § 4943, provides: "Suits between the same parties, arising under the same contract,...