Maddox v. Willis

Decision Date15 June 1949
Docket Number16657.
Citation54 S.E.2d 632,205 Ga. 596
PartiesMADDOX et al. v. WILLIS et al.
CourtGeorgia Supreme Court

Rehearing Denied July 14, 1949.

Mrs Mamie C. Maddox, Mrs. Willie Mae Howell and J. U. Grimsley filed in the Superior Court of Decatur County Georgia, a petition against T. F. Willis, M. L. Willis Hershel C. Floyd and Joshua Mention, which as amended alleged the following: The petitioners Mrs. Mamie C. Maddox and Mrs Willie Mae Howell are the owners and in possession of a certain tract of land located in the City of Bainbridge, Decatur County, Georgia, known as the Bon Air Block, comprising The Gilbert Hotel, Felty's Gift and Jewelry Shop, Lovett's retail grocery store, Bon Air Barber Shop, Grimsley Drug Company, and Francken's Department Store, which tract of land and improvements thereon are bounded on the south by Water Street and property of T. F. Willis, west by West Street, north by property of DesVerges and J. U. Grimsley and east by property of J. U. Grimsley and the defendant, T. F. Willis. The petitioner, J. U. Grimsley, is the owner and in possession of a certain lot, together with improvements thereon, located in the said City of Bainbridge and deseribed as follows: 'All of that tract or parcel of land in the City of Bainbridge, Decatur County, Georgia, described as follows: Commencing at a point on the west side of Broad Street at the southeast corner of the brick store building of J. D. Bower, and running in a western direction one hundred and twenty-four (124) feet parallel with the southern boundary of said store building, and thence south fourteen (14) feet, thence east thirty-seven and two-tenths (37.2) feet, thence in a southeasterly direction seventy-one and two-tenths (71.2) feet, thence east sixteen (16) feet to a sidewalk, thence north twenty-eight and eight-tenths (28.8) feet to a starting point, being bounded on the north by property of J. D. Bower, on east by Broad Street, on south by easement and property of Mrs. Mamie C. Maddox and Mrs. Willie Mae Howell, and more fully described in a certain plat drawn by G. S. Tucker, C. E., August 2d, 1948, and to which reference is made.' The defendant, T. F. Willis, claims the title and ownership of a certain lot with improvements thereon in Bainbridge known as the Belcher Block, at the corner of Water and Broad Streets, bounded on the east by Broad Street, south by Water Street, west by the property of the petitioners, Mrs. Maddox and Mrs. Howell, and on the north by the property of J. U. Grimsley and the petitioners, Mrs. Maddox and Mrs. Howell. There is a fourteen-foot wide easement for an alley and an alley fourteen feet wide, running from east to west between West and Broad Streets, beginning on the test side of Broad Street and running in a westerly direction over the north side of T. F. Willis' above described property and on the south side of J. U. Grimsley's above-described property, and thence westerly through Mrs. Mamie C. Maddox's and Mrs. Willie Mae Howell's above-described property to the east side of West Street, a map more fully showing the same being attached to the petition as Exhibit 'A' and made a part thereof. The said alley with the same road bed is located through improved land, has been in the continuous and uninterrupted use by the petitioners, their predecessors in title, their tenants, associates and the general public for more than twenty-five years, and the petitioners and they have kept the said roadbed in a good state of repair. The defendant, T. F. Willis, has recently begun and is now actively, by and through his agents and employees, the other defendants named herein, in the process of erecting and constructing a brick building facing east on Broad Street and across the east end of said alley, which brick building will, if not stopped, come within three feet of entirely closing, obstructing and blocking the entire east end of the said alley and make it impossible for the petitioners, their tenants, associates and the general public to have the further use and enjoyment of the said alley between Broad and West Streets. The defendant, T. F. Willis, has not given to the petitioners the thirty days' written notice or any other notice of his intention to close the said road or alley. The petitioners have notified the said Willis that they object to his having the said obstruction placed in the said alley, through his attorneys, Messrs. Conger & Conger, and his brother, M. L. Willis, the latter of whom the petitioners are informed was left in charge of the said construction for T. F. Willis, but both of them refuse to have the erection and construction of the said building across the east end of the said alley discontinued, and in fact the workmen are actively continuing in the building, construction and erection of the said obstruction and will so continue and close the east end of the said alley if the defendants are not restrained, enjoined and prevented from doing so. The petitioners are informed and believe that the defendant, T. F. Willis, is and will be absent from Decatur County for the next several days, so that any order passed upon this application cannot be served upon him, and the petitioners are further informed and believe that he has either contracted with or employed his said brother, Hershel C. Floyd and Joshua Mention, all of the City of Bainbridge, Georgia, to obstruct the above-mentioned alley and erect the said building across the same, and for said reasons they are named defendants herein, in order that they may be served with a copy of the petition and any order passed upon the same to also prevent them, as the agents or employees of the said Willis, from completing the structure which they have commenced and are erecting across the said alley for the said Willis. If the said Willis, his agents and employees, are not prevented from so closing the eastern end of the said alley, the petitioners, their tenants, associates and the general public will be prevented from using the said alley as a passageway, causing irreparable damage to the petitioners and to their said abutting property.

The petitioners and their predecessors in title have been in the open, uninterrupted and continuous use of the said alley as a means of ingress and egress to and from their said adjoining property for more than twenty-five years and the said obstruction which the defendants are in the act of placing across the alley will render the alley or private way unfit for further use. If the defendants are not enjoined and restrained from the further obstruction of the alley they will completely obstruct and block the passageway through the same adjoining the petitioner's property, and the petitioners will not be able to continue their use and enjoyment of the same as they have heretofore done for more than twenty-five years and the same will cause them irreparable loss and damage. The closing of the alley is and will be a continuing trespass and nuisance and injuries to them and to their adjoining property and has caused and will cause them irreparable loss and damage. They have no adequate remedy at law to prevent the further obstruction of the alley, which is a continuous nuisance and trespass, and to prevent a multiplicity and circuity of lawsuits, the court should enjoin the defendants from further obstructing the alley and causing irreparable loss and damage to the petitioners and their property. The said defendants have, without any legal authority, piled upon the southern side of the said alley and upon Mrs. Maddox's and Mrs. Howell's land as hereinbefore mentioned against the north side of the said Bon Air Hotel building, against the north side of the store designated as Francken's Department Store in exhibit attached to the petition, a large quantity and pile of brick which they were using in the erection of the said building over the east end of the alley. They have also piled a large pile of gravel on the west side of the petitioner Grimsley's land hereinbefore described, which they were using in the erection of the said building over the east end of the alley. They are keeping the said brick and gravel at the said locations and this is preventing the petitioners and their tenants from access to their said property for their use, repair and protection of the same, besides obstructing their use of the said alley. The brick, cement, mortar, gravel and building materials, which the defendants with legal authority have located on the east end of the said alley, make it impossible for the petitioners, their associates, and the general public to drive any vehicles through the said alley or use it as a passageway and further prevent the petitioners and their tenants from being able to keep their plumbing, water and electric system, which are located in the said alley, repaired, all of which they have continuously and unrestrictively done without interruption for more than twenty-five years before the acts of the defendants herein complained of, and the said acts of the defendants make the petitioners' property less useful to them and more hazardous to fire, and are, therefore, a continuing nuisance and trespass to the petitioners and their property.

The prayers were (a) for process; (b) that until the further order of the court the defendants, their servants, agents and employees be restrained and temporarily enjoined from erecting any obstruction in the said alley or in any way molesting it in any manner or interfering with the petitioners' free use and enjoyment of the same; (c) that the said alley be decreed to be a private way or public street and free from any future molestation by the defendants; (d) that the petitioners recover $1000 as damages already caused to them by the said past unlawful obstruction of the...

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