Owens Hardware Co. v. Walters, 18428

• Decision Date: 08 February 1954
• Docket Number: No. 18428,18428
• Parties: OWENS HARDWARE CO. v. WALTERS.
• Court: Georgia Supreme Court

Page 285

80 S.E.2d 285

210 Ga. 321

OWENS HARDWARE CO. v. WALTERS.

No. 18428.

Supreme Court of Georgia.

Feb. 8, 1954.

Grover C. Walters filed, in the Superior Court of Floyd County, Georgia, his petition to enjoin Owens Hardware Company from taking part of an alleged street for its own exclusive use, obstructing the same, and depriving the petitioner of the use thereof. His petition as amended alleges substantially: That he is the owner of lots 33, 34, and 35, in a certain subdivision in the City of Rome, Floyd County, Georgia, fronting on the west side of Lamar Street, and acquired by warranty deed dated and recorded February 1, 1941; that, when he purchased the same, there was of record a plat of the subdivision; that the part of Fairbanks Street which is the subject matter of this litigation was open; and that the petitioner purchased such property with the right and expectation that Fairbanks Street would remain open and unobstructed, and subject to his legitimate use.

That Owens Hardware Company owns lots 36 to 64 inclusive, in the same subdivision, which it acquired by two deeds dated May 18, 1950, and duly recorded; and that J. E. Sampson, who owned all of the property shown on the plat of the subdivision, is a common grantor, through mesne conveyances, of all of said lots owned by the petitioner and the defendant.

That Fairbanks Street, as shown on said plat, is about 20 feet in width and extends easterly and westerly about 760 feet, being bounded on the north by lots 10, 11, 37, 38, 63, and 64, of said subdivision, on the south by the right of way of the Southern Railway Company, and on the east by property of the defendant.

That On July 21, 1953, the City of Rome, through its duly elected commissioners, executed a 'quitclaim' deed to Owens Hardware Company, conveying a part of said Fairbanks Street 20 feet wide and 235 feet long, bounded on the north and east by property owned by said Owens Hardware Company, on the south by right of way of the Southern Railway Company, and on the west by Lamar Street. A copy of the deed, attached to the petition as an exhibit, indicates, however, that 'fee-simple' title was conveyed, and recites: 'This conveyance is made by authority of and in compliance with an ordinance duly passed by the Rome City Commission at a regular meeting held on the 20th day of July, 1953.' Said deed also recites that the strip of land conveyed is 'a portion of what was heretofore designated and dedicated for public street purposes,' extending from the east side of Lamar Street easterly a distance of 235 feet.

That the president of Owens Hardware Company told counsel for the petitioner that the company intended immediately to place a fence across said part of Fairbanks Street, and that there was a possibility that the company might construct a warehouse and railroad sidetrack thereon.

That said part of said street was 'laid out on said original plat as a street,' yet 'the City of Rome never worked said street in any way and never exercised ownership over same in any way.'

That Owens Hardware Company has no right, title, or interest in the portion of Fairbanks Street involved, and did not acquire any by virtue of the deed from the City of Rome, as the city had no right, title or interest, and no authority to dispose of the same to the defendant; that Owens Hardware Company claims the land by virtue of such deed and will permanently close such street and arrogate to itself the exclusive right and use of the same; that the petitioner does not have an adequate remedy at law and will suffer irreparable damage unless the defendant is enjoined from closing the street and assuming to itself the full right, power, and authority over same, and that the petitioner has an inherent right to the unrestricted and legitimate use of said portion of said street by virtue of the fact that, when the subdivision was platted and laid out, the tract in question was platted and laid out as a portion of Fairbanks Street, and said plat was duly recorded in the office of the Clerk of the Superior Court of Floyd County.

The petition as amended prayed that the defendant be enjoined from appropriating said street to its own use to the exclusion of the petitioner's free and unlimited legal use thereof; that the defendant be enjoined from blocking, obstructing, or closing said street in any manner that will deprive the petitioner of the free and unrestricted legal use of same; that the defendant be enjoined from any act that will bar and prevent the petitioner from using said street in any legal manner; and that such other relief be granted in the premises as may be reasonable and just.

The defendant demurred generally and specially to the original petition; and when the petition was twice amended, renewed such demurrers and urged them to petition as amended.

The grounds of general demurrer to the amended petition which are now insisted upon are; that it failed to set forth a cause of action; it failed to show a right of action in the petitioner; there is no equity in it; it showed that the petitioner has a complete and adequate remedy at law; it failed to show any ground for equitable relief; and it failed to show that the defendant is insolvent and unable to respondent in damages to the petitioner.

The demurrers to the petition as amended were overruled, and the bill of exceptions assigns error on the judgment overruling 'said general demurrers.'

Matthews, Maddox & Bell, Rome, for plaintiff in error.

Harris & Harris, Rome, for defendant in error.

Syllabus Opinion by the Court.

HAWKINS, Justice.

1. 'When * * * the owner of a tract or boundary of land divides it into lots, streets, and alleys, causes a...