Overton v. Alford

• Decision Date: 14 June 1954
• Docket Number: No. 18570,18570
• Citation: 210 Ga. 780,82 S.E.2d 836
• Court: Georgia Supreme Court
• Parties: OVERTON v. ALFORD.

Page 836

82 S.E.2d 836

210 Ga. 780

OVERTON v. ALFORD.

No. 18570.

Supreme Court of Georgia.

June 14, 1954.

Rehearing Denied July 14, 1954.

Syllabus by the Court.

The petition failed to state a cause of action for any relief, and the trial court erred in overruling the general demurrers. Weldon C. Boyd, Greensboro, Fred A. Gillen, Lexington, for plaintiff in error.

Kay Tipton, Tipton & Tipton, Madison, Erwin, Nix, Birchmore & Epting, Athens, for defendant in error. C.L. Alford filed a petition against G. H. Overton, and, as amended, the petition alleged: The defendant is a resident of Morgan County and is the owner and in possession of a tract of land lying in the Kingston District of the county. The petitioner is the owner and in possession of a tract of land in the same district, which lies near the tract belonging to the defendant. There is a public road about .4 mile in length along and through the lands of the defendant and to the lands of the petitioner. The road is now, and has been for more than 21 years, a public road, and is an established and authorized school-bus route. Paragraphs 5, 6, 7, and 8 are as follows:

'Petitioner alleges on information and belief that defendant is now engaged in and in the process of building and constructing, or causing the same to be done, an obstruction across said public road hereinabove described with the intent and purpose of blocking said road, and of altering said road, and of interfering with the full and free use of said road; and said obstruction, if allowed to commence and remain will prevent or hinder or interfere with petitioner's access to said O'Bear tract of land, with petitioner's use and enjoyment of the same, with said school-bus route, and with the rights of the public in and to the use of said road; and unless prevented or restrained said obstruction will be and constitute a permanent and continuing nuisance, and, to a reasonable degree certain, will damage irreparably this petitioner. That defendant has constructed, or caused to be constructed, at the point where said mentioned road connects with the Buckhead-Parks Mill Ferry Road right opposite defendant's dwelling portions of fence in the nature of wings that run out into the right of way of said road from each side thereof, leaving only a relatively narrow opening between two posts, which opening is so narrow that the larger vehicles, such as trucks and school buses cannot pass through without great danger of damage done to them by contact with the posts on each side, and this is particularly so in wet weather when the roads are muddy. Plaintiff alleges on information and belief that it was and is defendant's purpose and intention, if not prevented from doing so by legal means, to erect a gate, cattle gap, cattle crossing, or some other similar obstruction between the posts and connecting the fencewings above mentioned, in such manner to block effectively the full and free use of said road.

'6. That petitioner has tried by amicable and friendly means to dissuade defendant from erecting or causing to be erected said obstruction on and across said public road, but to no avail.

'7. That petitioner has no adequate remedy at law in the premises and therefore resorts to equity in this manner.

'8. That the obstruction erected, or caused to be erected, by defendant as described in paragraph 5 hereinabove, as it now stands, and most certainly if allowed to be completed, will constitute a permanent nuisance, continuing from day to day, and, to a reasonably degree certain will damage irreparably this petitioner, and has already damaged this petitioner specially in a manner not participated in by the general public, and will continue to so specially damage petitioner in the future, unless said obstruction is prevented from being completed and the parts now erected removed, and in support of this allegation plaintiff says as follows:

'a. Said mentioned obstruction as it now stands and as it would stand if completed materially affects the value of plaintiff's property hereinabove referred to as the O'Bear Place, materially lowering the value thereof.

'b. That said mentioned road is the only way of access that plaintiff has in, to and from his home on the said O'Bear property, and said mentioned obstruction peculiarly and specially damages plaintiff, and will continue to damage plaintiff from day to day unless removed, for this reason.

'c. That defendant's cows, while they are being pastured in the fields along said mentioned road frequently wonder [wander?] about said road right of way and lie down in it, making it necessary for plaintiff to nudge them out of the way in order to pass, thus specially damaging plaintiff.'

The petitioner prayed for process, that the defendant be restrained and enjoined 'from erecting, or causing to be erected, any device of any kind obstructing or tending to obstruct or block, wholly or partially, said public road, or to interfere in any way with its free use for the purposes for which it is intended'; that the defendant be required to remove any obstruction he may have put or caused to be put in the road; and that the defendant be temporarily and permanently enjoined 'from allowing his cows...