Hancock v. Moriarity, 20526
| Decision Date | 11 September 1959 |
| Docket Number | No. 20526,20526 |
| Citation | 215 Ga. 274,110 S.E.2d 403 |
| Parties | O. C. HANCOCK et al. v. Katherine MORIARITY. |
| Court | Georgia Supreme Court |
O. C. Hancock, R. B. Pullen, Atlanta, for plaintiff in error.
L. Norman Fisher, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
On November 12, 1958, Mrs. Katherine G. Moriarity filed a petition for both legal and equitable relief, in the Superior Court of Fulton County, against Mrs. Mary Jo Ayers and O. C. Hancock, alleging, in brief, as follows: On August 26, 1919, she purchased from Mrs. Lilly C. Beall a lot or parcel of land in the City of Atlanta, which fronts 40 feet on Piedmont Avenue and for the same width extends back and east 135 feet, together with all right, title and interest in and to a ten-foot-wide alley or strip of land extending from the rear of her lot eastwardly along W. H. Crosby's north line to the main north and south alley which connects Fifth and Fourth Streets; and her warranty deed therefor was duly recorded in Fulton County on March 26, 1921. Since purchasing her property, she has maintained, improved, repaired, and used the alley or ten-foot strip described in her deed as a means of ingress to and egress from her lot, her garage being located on the rear portion thereof. On January 27, 1948, the defendant Hancock purchased a lot or parcel of land in the same block which fronts 30 feet on Fifth Street and for the same width extends back and south 80 feet, with a strip ten-feet wide across the rear part of it being expressly reserved for alley purposes. The defendant Ayers resides on the defendant Hancock's lot as his tenant, and since on or about August 11, 1958, she has on 'numerous uncountable occasions' parked her automobile which is more than six feet wide in and on the ten-foot wide strip described in the petitioner's deed 'for days and nights at a time' and so as to block and thus prevent the petitioner from using it as a means of ingress to and egress from her lot; and this she has repeatedly done on many occasions, both during the day and at night, after being notified in writing of the petitioner's right to use it as a means of reaching and leaving her property, and a continuation of such acts of trespass by the defendant Ayers is imminent from her acts, conduct, and threats. By such lots of ingress and egress, the reasonable market value of petitioner's property has been reduced $5,000; and the defendant Ayers' continuous wilful and wanton acts of trespass have caused the petitioner much inconvenience, expense, anguish and peace of mind, so much so that she is entitled to recover punitive damages for such wrongs. An amendment to the petition alleges that the defendant Hancock wilfully and wantonly aided, abetted, and acted in concert with the defendant Ayers in so blocking and obstructing the petitioner's means of ingress and egress, and that he likewise directed her to commit such wrongful acts. There are prayers that the defendants be enjoined, temporarily and permanently, from committing such acts of trespass in the future; that the petitioner recover a judgment against the defendants for $5,000 as general damages sustained by her because of the depreciated value of her realty, and $1,000 as punitive damages; and that she be granted general relief. The defendants interposed separate but identical demurrers to the amended petition on the following grounds: (1) It fails to state a cause of action for equitable relief, since it shows on its face that the plaintiff has an adequate and complete remedy at law; (2) its allegations do not authorize a recovery of damages for a diminution in the value of her realty; (3) it contains a misjoinder of parties and subject matters; and (4) its allegations as to each defendant are mere conclusions of the pleader with no facts alleged on which to base them. All of the demurrers were overruled, and the exception is to that judgment. Held:
1. The allegations of the amended petition are not only sufficient to show a trespass but a constantly recurring one, and it is well-settled by many unanimous decisions of this court...
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