Mayor and Council of City of Forsyth v. Hooks

• Decision Date: 21 February 1936
• Docket Number: 10662.
• Citation: 184 S.E. 724,182 Ga. 78
• Parties: MAYOR AND COUNCIL OF CITY OF FORSYTH et al. v. HOOKS.
• Court: Georgia Supreme Court

184 S.E. 724

182 Ga. 78

MAYOR AND COUNCIL OF CITY OF FORSYTH et al. v. HOOKS.

No. 10662.

Supreme Court of Georgia

February 21, 1936

Rehearing Denied March 20, 1936.

Syllabus by the Court.

1. Where it appears that one in possession of land has no title and his only relationship to the property is his possession acquired under circumstances such that no prescription could arise therefrom, equity will not, at the instance of one merely in possession of land, afford affirmative relief such as the grant of an injunction against interference with possession. Even as against a wrongdoer, an injunction will not at the suit of a stranger to the title or possession issue to restrain a trespass. "A squatter can never gain prescriptive title to land, no matter how long he holds the possession. His possession is never considered as adverse." Powell on Actions for Land, § 327. Upon the injunctive relief prayed, the ruling of this court in Crawford v. Crawford, 143 Ga. 310, 85 S.E. 192, is controlling.

2. In view of the rulings upon the demurrer, as set forth in the opinion, it is unnecessary to include them in the syllabus. Under the averments of the petition, the plaintiff had no title, and none could be derived by prescription.

3. The trial, after the court's ruling on demurrer, was nugatory. The court erred in not sustaining the demurrer and in not dismissing the action.

Error from Superior Court, Monroe County; Wm. E. H. Searcy, Jr. Judge.

Suit by V. B. Hooks against the Mayor and Council of the City of Forsyth and others. Judgment for plaintiff, and defendants bring error.

Reversed.

V. B Hooks brought a petition for injunction and other relief against the mayor and aldermen of the city of Forsyth and the chief of police of that city, alleging substantially the following: Petitioner is the owner of a business in the city of Forsyth, operated under the name of the Forsyth Coal & Lumber Company, on property owned by him, consisting of two lots facing each other and separated by a tract of land at the end of Jackson street, which petitioner is using as a means of ingress and egress to his place of business. He has recently been served with an official notice by the mayor and aldermen of the city to clear of obstructions a portion of his property which, it is contended by the city authorities constituted a portion of Jackson street, and, upon his refusal to do so, that the police of said city will enter on the property and clear it of obstructions under authority of a city ordinance looking to opening the strip of land as an extension of Jackson street. This strip of land is not now, and has never been, a public street, and has never been dedicated as a street. Petitioner purchased the lots in 1919 by warranty deeds properly recorded. Soon after the purchase of the two lots, petitioner presented to the mayor and aldermen of the city a petition calling attention to the facts, and asking that the status of this lot be determined, as otherwise he desired to file a bill to quiet the title to the land which he purposed to use in his business as a connecting link between his two lots. Upon presentation of this petition the mayor and aldermen of the city passed the following resolution: "Be it resolved by the Mayor and Aldermen of the City of Forsyth, that said city asserts no title or claim to the portion of the street in question, and same is formally abandoned as a portion of said Jackson Street." After ratification of his title to the strip of land, petitioner proceeded with valuable improvements on his property, erecting warehouses, planing mill, and other improvements, and procuring the installation of a sidetrack by the railroad company, and he has continued since 1919 to operate this business on the property, including the strip of land in controversy.

In 1919 certain individuals as citizens and taxpayers of the city of Forsyth filed a petition questioning the right and title of petitioner to use and enjoy the strip of land, contending that it was in fact an extension of Jackson street, and seeking to enjoin petitioner from using and enjoying the lot or placing obstructions thereon. The jury trying the case found in favor of Hooks and against the injunction. Since the rendition of this judgment Hooks has continued in the quiet, peaceable, notorious, adverse, and uninterrupted possession of the property and his right of enjoyment and possession has never been questioned. The property has never been dedicated to any public use as a street, and as owner of the property on each side thereof he is the owner of the same in fee simple. It is unjust and inequitable for the city to ratify his title and allow him to make improvements on the property in 1919 and, after thirteen years of acquiescence therein, to destroy and render of no value his plant; and the conduct of the city works an estoppel now to assert title to the property, especially as the city never held or acquired title. To allow the chief of police to remove his lumber stacked on the property and other property thereon would work a hardship on petitioner and interfere with the conduct of his business, the damages for which are incapable of exact computation; which should be enjoined in a court of equity. The resolution of the mayor and aldermen to open up the land as a street constitutes a cloud on his title. The city is not proceeding with condemnation proceedings, but is proceeding with a claim of right and title to the property. The prayers are that the authorities of the city be enjoined from carrying into effect the resolution to open up the property as a street, and from interfering with petitioner's use of the property in the conduct of his business, and for general relief.

The city filed a demurrer and an answer to the petition. The grounds of demurrers are that the petition sets out no cause of action, and shows on its face that the plaintiff is not entitled to the equitable relief sought, and that his relation to the property is that of a mere squatter; that his possession was acquired under such circumstances that no prescription could be based thereon; that he has an ample remedy at law; that there is no allegation that the city is insolvent and unable to respond in damages that might arise from removal of the obstructions and opening the land as a street; that a ratification of the title of petitioner by the city could only be based on the title or right of ownership in the city or its use by the city, or the use by the city and its citizens as a street; that the mayor and aldermen of the city would have no right to convey to petitioner property which it never had, or to ratify his title to a street which he claims was never a street, and he could not base any prescriptive title upon such ultra vires and void action of any one; that he proceeded at his peril to use the land as his own, not having title. Other grounds of demurrer are that certain allegations of the petition are mere conclusions of the pleader, and that still others are immaterial. The court overruled the demurrer, and the defendant excepted pendente lite. The trial resulted in the direction of a verdict for the plaintiff. A motion for new trial was overruled, and the defendant excepted, assigning error also on the pendente lite ruling on the demurrer.

HUTCHESON, J., dissenting.

Williams & Freeman, of Forsyth, for plaintiffs in error.

Willingham & willingham, of Forsyth, and Beck, Goodrich & Beck, of Griffin, for defendant in error.

RUSSELL Chief Justice.

After a painstaking examination of the authorities cited by counsel as well as others which were discovered as a result of quite laborious investigation, we have reached the conclusion that the court erred in not sustaining the demurrer to the petition and in not dismissing the action. It is to be borne in mind that, while a demurrant must admit the truth of the statements of fact made by an opponent (whether the demurrer be addressed to a petition or be one in which the plaintiff attacks the answer of the defendant) when well pleaded, nevertheless another rule must be applied, which is that, when the court is dealing with a demurrer, the pleading attacked thereby is to be construed most strongly against the pleader, and that in the construction of a pleading it must be considered as a whole, and the allegations of one portion of the writing may not only render indefinite and obscure other portions, but may even serve the purpose of the demurrant. The petitioner in this case invokes the intervention of equity, and asks that the mayor and aldermen and the chief of police of the city of...