Morgan v. Baxter

• Decision Date: 28 March 1901
• Parties: MORGAN . v. BAXTER et al.
• Court: Georgia Supreme Court

38 S.E. 411

113 Ga. 144

MORGAN .

v.BAXTER et al.

Supreme Court of Georgia.

March 28, 1901.

TITLE—ADVERSE POSSESSION—TRESPASS—INJUNCTION—NONRESIDENT DEFENDANT.

1. Where the only "right of property" relied upon by plaintiff is seven years' adverse possession under color of title, and the only "right of possession" claimed is by reason of the termination of a lease from him, under which it is alleged the defendant holds, the cutting of timber for sawmill purposes and railroad ties will not be enjoined, unless the injury will be irreparable in damages, or the trespasser is insolvent, or there exist other circumstances, which, in the discretion of the court, render the injunction necessary and proper.

2. The fact that one who is sought to be enjoined from committing a trespass is a nonresident of the state is not, of itself alone, a circumstance which requires the granting of an injunction against him.

3. Under the pleadings and evidence there was no abuse of discretion in refusing to grant a temporary injunction.

(Syllabus by the Court.)

Error from superior court, Clinch county; Jos. W. Bennet, Judge.

Action by J. L. Morgan against G. S. Baxter & Co. and others. From an order refusing temporary injunction, plaintiff brings error. Affirmed.

R. G. Dickerson and J. L. Sweat, for plaintiff in error.

Toomer & Reynolds and Leon A. Wilson, for defendants in error.

FISH, J. J. L. Morgan sought to enjoin Baxter & Co. and their agents from cutting and removing for sawmill purposes and railroad ties the timber from certain lands in Clinch county. The title upon which the plaintiff relied was adverse possession of the lands under written evidence of title for more than seven years, and an abstract of the deeds constituting such written evidence of title was attached to the petition. The petition alleged that plaintiff, in March, 1890, leased to Paxton & Mattox the timber suitable for sawmill purposes, etc., on the lands in question; that subsequently the receivers of Paxton & Mattox sold their rights under the lease to Craig & Co., who in turn conveyed the same to the defendants; that the lease was to continue for 10 years from the time the lessees or their assigns should commence to cut and remove the timber from the land; that It had expired before the petition in the present case was filed; and that the right to cut and remove the timber was claimed by the defendants under such lease. As to the damages being irreparable the petition alleged that the defendants were cutting and removing the timber from the land, "to the great and irreparable injury and damage of your petitioner in the sum of five thousand dollars, or other large sum, " and again, "to the damage of plaintiff in the sum of five hundred dollars per lot, or other large sum"; and there was a prayer that on the final trial "the petitioner be allowed such damages as he may be able to show to the Jury he

has sustained." The only reference made In the petition to the insolvency of the defendants was, "Your petitioner's title being perfect, and he having no remedy at common law, the defendants, as he believes, being Insolvent, he prays, " etc. It was alleged that all of the defendants were nonresidents of the state. The defendants demurred to the petition upon the grounds: (1) "That the plaintiff fails to show by his petition a perfect title to the land mentioned in said petition, or to the timber situated thereon;" (2) "because the plaintiff fails to attach to his petition an abstract of his title stating the name of the grantor and grantee, the date, consideration, and description of property, names of witnesses, and when and where recorded;" (3) "because the plaintiff states no fact and makes no allegation that could entitle him to the relief prayed for by him." The defendants filed an answer, in which they admitted the making of the lease by the plaintiff, the terms thereof, and the transfers of the rights of the lessees thereunder as charged in the petition, but denied that plaintiff was owner of the land, and also denied that defendants were insolvent and that the damage would be irreparable. The court refused to grant an interlocutory injunction, and the plaintiff excepted. The bill of exceptions states that the hearing was had on the pleadings and evidence submitted by the plaintiff, and that upon the hearing counsel for defendants admitted that the limitation in the lease from plaintiff to Paxton & Mattox had expired prior to the institution of plaintiff's suit, and that when the petition was filed defendants were cutting and removing the timber from the land, but that it was expressly denied that the defendants held the timber, or any interest therein, under the plaintiff. The evidence submitted in behalf of the plaintiff tended to show that he had title by prescription to all the land in question except two lots, as to which there was no evidence that the plaintiff had any interest in them or the timber thereon. There was also evidence that the defendants were nonresidents of the state. There was no evidence as to the insolvency of the defendants, or that the damage would be irreparable. The only points referred to In the brief for plaintiff in error (there being no oral argument) are that pl...