Nottingham v. Elliott, 18023
| Citation | 74 S.E.2d 93,209 Ga. 481 |
| Decision Date | 13 January 1953 |
| Docket Number | No. 18023,18023 |
| Court | Supreme Court of Georgia |
| Parties | NOTTINGHAM v. ELLIOTT. |
A. C. Felton, III, Montezuma, W. B. Mitchell, Forsyth, Owen J. Adams, Thomaston, for plaintiff in error.
John H. McGehee, Jr. and T. Dickson Adams, Thomaston, for defendant in error.
Syllabus Opinion by the Court.
Nottingham filed a suit in equity against Elliott. The petition as amended, after some of its allegations were stricken by the court on special demurrer, alleges in substance: The plaintiff owns lots 200 and 201 in land district 16 of Upson County, Georgia, and the defendant owns a tract of 275 acres on lots 194 and 195 in the same district, north of but adjacent to his lots. The two tracts are separated by the original land lot lines, and those dividing lines are marked by a hedgerow, a wire fence, and by wood and iron stakes. The defendant has recently caused a survey to be made of his tract which locates its south boundary line 'about' 600 feet south of the original south lines of lots 194 and 195 and, consequently, on his lots 200 and 201. There is valuable timber on the plaintiff's land, and the defendant is interfering with his right to use it by threatening to shoot his timber agent, C. C. Collins if he enters upon the strip of land in controversy for the purpose of cutting timber. The plaintiff recently located a sawmill on the land in question, but moved it off because of the defendant's aforesaid interference. The prayers are: (a) for rule nisi and process; (b) that the defendant be restrained and permanently enjoined from interfering with the plaintiff's right to cut the timber on the land involved; (c) that the dividing line between the lands of the plaintiff and those of the defendant be declared to be the original lines between the four numbered lots; (d) that the defendant be restrained and permanently enjoined from taking possession of any land south of the true original lines of the four lots involved; (e) that title to the strip of land in question be decreed in the plaintiff, and (f) for general relief. The amended petition was dismissed by the court on general demurrer, and the plaintiff excepted. Error is properly assigned in the bill of exceptions on the pendente lite ruling sustaining the defendant's several grounds of special demurrer to the petition, and upon the judgment dismissing the petition on general demurrer. Held:
1. The exception to the ruling of the court upon the several grounds of special demurrer, being neither orally argued nor insisted upon in the brief submitted for the plaintiff in error, will be treated as abandoned. Knowles v. White, 199 Ga. 772, 773(1), 35 S.E.2d 451; Chaffin v. Chaffin, 207 Ga. 36, 38, 59 S.E.2d 911, and citations.
2. 'A mere verbal claim to, or assertion of ownership in, property, is not such a cloud upon the title of the owner as can be removed by equitable proceedings.' Waters v. Lewis, 106 Ga. 758, 32 S.E. 854; Howell v. Wilson, 137 Ga. 710, 716, 74 S.E. 225; Davison v. Reynolds, 150 Ga. 182, 187, 103 S.E. 248.
3. 'Equity will not take cognizance of a plain legal right where an adequate and complete remedy is provided by law; but a mere privilege to a party to sue at law, or the existence of a common law remedy not as complete or effectual as the equitable relief, shall not deprive equity of jurisdiction.' Code, § 37-120. Applying this principle in the instant case, it has been held: 'Except in a case specially provided for by statute, 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 and proper.' Waters v. Lewis, supra; Putney v. Bright, 106 Ga. 199, 32 S.E. 107; Morgan v. Baxter, 113 Ga. 144, 38 S.E. 411. Compare Gainesville Midland R. Co. v. Tyner, 204 Ga. 535, 50 S.E.2d 108. And it is well settled by numerous decisions of this court that a bare threat of injury to property, which, if followed up by an overt act would work irreparable injury, affords no basis for equitable relief by injunction or otherwise. West v. Chastain, 186 Ga. 667, 198 S.E. 736; City of Atlanta v. Universal Film Exchanges, 201 Ga. 463, 39 S.E.2d 882; City of Brunswick v. Anderson, 204 Ga. 515, 50 S.E.2d 337; Mayor, etc., of Athens v. Co-op Cab Co., 207 Ga. 505, 62 S.E.2d 906.
4. 'A court of equity will not ordinarily entertain a bill solely for the purpose of establishing the title of a party to real estate, or for the recovery of possession...
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...v. Anderson, 204 Ga. 515(3), 50 S.E.2d 337; Mayor, etc., of Athens v. Co-op Cab Co., 207 Ga. 505(2), 62 S.E.2d 906; Nottingham v. Elliott, 209 Ga. 481(3), 74 S.E.2d 93. Allegations based on mere apprehension of injury and general conclusions, without alleging facts to show irreparable injur......
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...351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112; Mayor, etc., of Athens v. Co-op Cab Co., 207 Ga. 505(2), 62 S.E.2d 906; Nottingham v. Elliott, 209 Ga. 481(3), 74 S.E.2d 93; Armed Forces Service Co. v. Petree, 211 Ga. 867(1), 89 S.E.2d 486, yet one is not required to await the infliction of the ......
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U.S. Cas. Co. v. Georgia Southern & F. Ry. Co., s. 19341
...facts sufficient to justify the same are not alleged and proved.' Levine v. Perry, 204 Ga. 323(1), 49 S.E.2d 820, 821; Nottingham v. Elliott, 209 Ga. 481(3), 74 S.E.2d 93. An allegation to the effect that equitable relief is necessary to avoid a multiplicity of suits is merely a conclusion ......
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...of Atlanta, 200 Ga. 749, 38 S.E.2d 596; City of Brunswick v. Anderson, 204 Ga. 515(3), 50 S.E.2d 337, and citations; Nottingham v. Elliott, 209 Ga. 481, 74 S.E.2d 93. In Nottingham's case, supra, which involved a controversy respecting the boundary line between adjacent tracts of land, the ......