Hogan v. Cowart
| Decision Date | 13 March 1936 |
| Docket Number | 10727. |
| Citation | 184 S.E. 884,182 Ga. 145 |
| Parties | HOGAN v. COWART. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Where owner using servitude, such as agricultural ditch, on both his tracts executes deed conveying one tract unconditionally and in fee simple, he cannot afterwards convert servitude into easement over deeded tract by conveyance of other tract to different grantee.
Petition must be construed most strongly against petitioner, and where petition alleges that two tracts were conveyed on same day, and it is necessary to petitioner's claim that conveyance of her tract was first, it is to be assumed that other tract was conveyed first, in absence of allegation that petitioner's tract was first conveyed.
Owner of land may acquire easement by prescription (Code 1933, § 85-409).
Adverse use of twenty years is required for acquisition of easement by prescription, in absence of color of title (Code 1933, § 85-409).
Prescription whereby owner may acquire easement to use open drainage ditch extending from his land through lands of adjoining proprietor runs from time ditch is so used, regardless of when or whether prescriber actually entered on adjacent land (Code 1933, § 85-409).
Petition alleging that petitioner and defendant were remote grantees of same grantor under separate deeds executed on same day, at time when drainage ditch ran through both tracts held insufficient to allege acquisition of easement in ditch over defendant's land by grant.
Petition held sufficient to show that plaintiff acquired easement in drainage ditch by prescription (Code 1933, § 85-409).
Petition to enjoin obstruction of drainage ditch in which plaintiff claimed easement held not generally demurrable although insufficient to show easement by grant, where sufficient to show easement by prescription.
Petition to enjoin future obstruction of ditch and interference preventing plaintiff from entering on defendant's land to clean out ditch and keep it in repair held not demurrable on grounds that acts complained of had been completed and that injunction prayed for was mandatory.
Defendant's closing of ditch on defendant's land in which plaintiff had easement entitled plaintiff to recover general damages and cost of making repairs, since burden of maintaining ditch and expense of cleaning it out was on plaintiff.
Statute limiting damages for continuing trespass to those which occurred before action was commenced applies to actions at law, but not to causes in equity (Code 1933, § 105-1406).
Charge that, if jury found for plaintiff, it would not be bound by weight as to what damages were, but would apportion damages to satisfy itself as to value thereof, and that, if plaintiff was entitled to damages for obstruction of ditch, she was entitled to injunction held confusing and misleading.
Error from Superior Court, Gordon County; C. C. Pittman, Judge.
Suit by Jennie Cowart against F. M. Hogan. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.
Reversed.
Charge that, if jury found for plaintiff, it would not be bound by weight as to what damages were, but would apportion damages to satisfy itself as to value thereof, and that, if plaintiff was entitled to damages for obstruction of ditch, she was entitled to injunction held confusing and misleading.
Wm. E. Mann and W. G. Mann, both of Dalton, for plaintiff in error.
Y. A. Henderson and T. H. Lang, both of Calhoun, for defendant in error.
Syllabus OPINION.
1. In this state, where an owner of two tracts of land, while using a servitude on both tracts such as an agricultural ditch through cultivated lands, executes a deed conveying in fee simple and unconditionally one tract, he thereby loses all power over that tract, and cannot afterward convert the servitude which he had enjoyed into an easement over that tract, by conveyance of the other tract to a different grantee. Rogers v. Wilson, 171 Ga. 802 (3), 156 S.E. 817.
(a) If the doctrine of implied reservation of an easement of necessity by a grantor of land can be applied in this state, the allegations of the petition are insufficient to show an easement of necessity at the time of the grant in question, there being no allegation that the location and circumstances were such that said grantor could not acquire another suitable location to serve the purpose of the easement for which plaintiff is now contending.
(b) It is necessary to the plaintiff's claim that conveyance of her tract was first in order. She is presumed to have alleged the facts of the case most strongly in her own favor; and having alleged that both tracts were conveyed by the common owner on the same day, it is to be assumed that the defendant's tract was conveyed first in point of time, in the absence of allegation that the conveyance of plaintiff's tract was first in order.
(c) The petition when construed, as it must be, most strongly against the petitioner, is insufficient to charge an easement by grant from the common owner over the defendant's tract, or a cause of action on the basis of an easement by grant.
(d) The foregoing is not violative of the principles stated in Muscogee Manufacturing Co. v. Eagle & Phenix Mills, 126 Ga. 210 (6-11), 54 S.E. 1028, 7 L.R.A. (N.S.) 1139.
2. "An incorporeal right which may be lawfully granted, as a right of way or the right to throw water upon the land of another, may be acquired by prescription." Code of 1933 § 85-409. Under this and related sections of the Code, an owner of land may acquire by prescription an easement over the lands of another, the prescriptive period of adverse use being twenty years or longer, unless under color of title. Smith v. Jensen, 156 Ga. 814(3), 120 S.E. 417. This may apply to the right of a proprietor to use an open agricultural ditch extending from his lands through the lands of an adjoining proprietor and there connecting with a river, for the purpose of drainage, whether or not the prescriber ever actually entered or occupied such adjacent land. Watkins v. Pepperton Cotton Mills, 162 Ga. 371(6), 134 S.E. 69; Whelchel v. Gainesville & Dahlonega Electric Railway Co., 116...
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