Huxford v. Southern Pine Co.

• Decision Date: 13 November 1905
• Citation: 52 S.E. 439,124 Ga. 181
• Parties: HUXFORD v. SOUTHERN PINE CO. et al.
• Court: Georgia Supreme Court

52 S.E. 439

124 Ga. 181

HUXFORD v. SOUTHERN PINE CO. et al.

Supreme Court of Georgia

November 13, 1905

Syllabus by the Court.

A bill of exceptions which recites that a motion to dismiss a petition was made upon various grounds and overruled, and that to this ruling "the defendant then and there excepted, and now assigns the same as error," and that a motion for a new trial was made and overruled, and to this ruling "the defendant excepted, and now assigns the same as error," specifies "plainly the decision complained of and the alleged error," and specifically sets forth the error alleged to have been committed," within the meaning of Civ. Code 1895, § § 5527, 5528.

A petition by an owner of land and another, who holds a timber lease from him, alleging that, when the lessee entered into possession and undertook to exercise the privileges granted under the lease, the defendant, by threats of violence intimidated the servants of the lessee, and drove them away from the land, and by intimidation continues to prevent the lessee and his servants from entering upon the land, thereby making it impossible for the lessee to exercise his rights under the lease, and praying for permanent injunction to restrain the wrongful conduct complained of, sets forth a cause of action, authorizing the granting of a writ of injunction, as against a motion to dismiss, in the nature of a general demurrer, made at the trial term.

The courts of this state take judicial notice of the governmental survey of its territory and the relative location as originally laid off, as well as the effect of legislative enactments creating new counties, and fixing the boundary lines thereof.

The act of 1874, regulating the manner of returning wild lands for taxes, authorizes the Comptroller General to issue an execution against an unreturned lot of wild land for the taxes of that year.

In actions of trespass to realty, ownership of the premises is incidentally involved, and while in such cases a special finding by the jury as to ownership is not required, the incorporation of such a finding will not vitiate it, if the verdict is in other particulars regular and proper.

The finding of the jury in favor of a permanent injunction did not, in the light of the petition and evidence, have the effect of granting an injunction which was mandatory in its nature.

The evidence demanded the verdict directed by the court, and no sufficient reason has been shown for reversing the judgment.

Error from Superior Court, Coffee County; T. A. Parker, Judge.

Action by the Southern Pine Company of Georgia and J. I. Crawley against C. Huxford. Judgment for plaintiffs, and defendant brings error. Affirmed.

Frankford & Dickerson, for plaintiff in error.

Jno. C McDonald, for defendants in error.

COBB P.J.

1. There was no motion to dismiss the writ of error, but the point is raised in the brief of counsel for the defendant in error that the assignments of error are not sufficiently definite and specific to be considered. The bill of exceptions recites that a motion to dismiss the petition was made upon grounds therein set forth, and was overruled, and the assignment of error is in the following language "To which said ruling the defendant then and there excepted, and now assigns the same as error." This was sufficient to bring under review any question raised by the motion to dismiss. Melson v. Thornton, 113 Ga. 99, 38 S.E. 342 (2). The bill of exceptions also recites that a motion for a new trial was overruled, and the assignment of error on this judgment is in the following language: "To which said order the defendant excepted, and now assigns the same as error." This assignment of error is in compliance with the rule of this court in reference to assignments of error of the character now under consideration. Rule of Court 6; Civ. Code 1895, § 5605.

2. The plaintiffs are not the owners of timber, complaining of a trespass by a timber cutter, but they are timber cutters themselves, whose right to cut is alleged to have been interfered with by one who, they allege, is not the owner, nor in any way interested in the timber. It is apparent, therefore, that the timber cutter's act (Civ. Code 1895, § 4927) has no application to the case. The case must therefore be determined upon general equity principles governing where an application is made to enjoin a wrongdoer or trespasser from interfering with a property right of another. The circumstances under which a court of equity will by injunction interfere in such a case are set forth in Civ. Code 1895, § 4916, which is in the following language: "Equity will not interfere to restrain a trespass, unless the injury is irreparable in damages, or the trespasser is insolvent, or there exist other circumstances which, in the discretion of the court, render the interposition of this writ necessary, among which shall be the avoidance of circuity and multiplicity of actions." There is no allegation of insolvency. The petition sets forth the wrongful conduct complained of, which is the interference with the plaintiffs in the right to the exclusive control of their property and the quiet possession of the same, and the narrative concludes with the averment that the plaintiffs are without a remedy at law, and would be irreparably injured and damaged. A mere general averment that the damages resulting from a wrongful act would be irreparable, being only a conclusion of the pleader, is generally not sufficient. Burrus v. Columbus, 105 Ga. 46, 31 S.E. 124 (2). It is necessary that the petition should set forth the facts, so that the court may determine whether the damages would be of this character. It is therefore necessary to determine whether, under the averments of the petition, such a case is made as would authorize a court of equity to interpose in behalf of the plaintiffs, and grant the injunction prayed for.

The question of the sufficiency of the petition not having been raised until the trial term, the averments of the petition will not be subjected to that scrutiny which would be required if the defects had been pointed out by special demurrer. While it is not alleged in terms that the wrongful acts complained of would give rise to a multiplicity of actions for damages, still it is apparent that the only remedy which the plaintiffs would have at law would involve a multiplicity of actions. The Pine Company is the owner of the land, and Crawley holds a timber lease under it. The Pine Company is entitled to the peaceful and uninterrupted occupation of its property, either by itself or its tenant and Crawley is entitled to possession of the same character under his lease. The servants of Crawley have been driven from the place by the wrongful act of the defendant, and by intimidation, which continues from day to day, he prevents Crawley and his servants from using the timber upon the property for the purposes which, under the lease, he had a right to use it. Every day that he is deprived of the possession of the premises gives him a right of action against the defendant to recover such damages as would result from this wrongful act. Frequent acts of trespass, accompanied with a threat to continue, constitutes a sufficient reason to grant an injunction. Bish. Prin. Equity (4th Ed.) 490; 1 High on Injunction (3d Ed.) 536. In Gray Lumber Co. v. Gaskin, 122 Ga. 351, 50 S.E. 164, it was said: "An action at law for damages would have been a complete remedy for the injury sustained prior to the suit; but it would not have prevented further trespasses. Ought the plaintiffs to be harassed and annoyed by being required to bring a new suit every day as long as the...