Phinizy v. Gardner
| Decision Date | 17 October 1924 |
| Docket Number | 4158. |
| Citation | 125 S.E. 195,159 Ga. 136 |
| Parties | PHINIZY ET AL. v. GARDNER ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
One who is the owner of the easement of burial in a cemetery is entitled to recover damages from any one who wrongfully interferes with such right. Jacobus v Congregation of Children of Israel, 107 Ga. 518, 33 S.E. 853, 73 Am.St.Rep. 141; Stewart v. Garrett, 119 Ga. 386, 46 S.E. 427, 64 L.R.A. 99, 100 Am.St.Rep. 179. If such trespass is a continuing one, a court of equity will enjoin it. Stovall v. Caverly, 139 Ga. 243, 77 S.E. 29. If we concede that the plaintiff had an adequate remedy at law for the removal of the fences erected by the defendant across the private way to the cemetery, such remedy would not give adequate relief to the plaintiff for the continued plowing and cultivation of the roadway. Such relief could only be obtained in equity.
Where the main purpose of the injunction is not to require affirmative action, but to restrain the defendant from repeating a trespass, the injunction is not a mandatory one although compliance with it may require some affirmative action on the part of the party enjoined, such as the removal of a fence across the roadway to a cemetery. Spencer v Tumlin, 155 Ga. 341, 116 S.E. 600.
Error from Superior Court, Richmond County; A. L. Franklin, Judge.
Suit by Mrs. Mary B. Gardner and others against Jacob Phinizy and others, executors. Judgment for plaintiffs, and defendant named brings error. Affirmed.
Mrs Mary B. Gardner and others brought an equitable petition against Jacob Phinizy, and alleged in substance the following: Oswald Eve on March 10, 1826, conveyed by deed which was recorded, to Catherine Fitzsimmons, Joseph Eve Anderson Katkins, John Carmichael, Gilbert Longstreet, John Bones, Ann P. Cunningham, Sara Adams, and John P. Eve, and "their and each of their heirs forever, as joint tenants," the following-described realty and right of way, to wit:
At the date of the deed Oswald Eve owned the land lying between the cemetery lot and the Savannah road on the west, which was the nearest public road; and the wagon or carriage road referred to was located from the cemetery lot in a northwesterly direction, passing in front of the summer residence, also called the "cottage," and extending out into the Savannah road; and said wagon or carriage road was used continuously from the date of the deed until some time in the year 1922. The tract of land through which the wagon or carriage road ran subsequently became the property of Sara Adams, one of the heirs and legatees of Oswald Eve; and Sara Adams by her will dated January 2, 1851, and probated March 7, 1851, in the court of ordinary of Richmond county, devised the land with this proviso:
"That the piece of ground now appropriated as a family burying ground, together with an acre of land adjoining, to be laid off by my executors, shall be reserved for the purposes of a graveyard only, and that a right of way from the Savannah road be always reserved over the intervening land for the passage of funerals."
In 1922 the defendant, without previous knowledge by plaintiffs of his intention, built a wire fence across the wagon or carriage road at the western line of the cemetery lot and at the eastern line of the Savannah road, and otherwise obstructed the same by felling trees and plowing, so that the wagon or carriage road could not be used for any purpose whatever. The wagon or carriage road as finally agreed upon, located and used by the then owners of the land through which it extended, was 25 feet wide, and ran in a practically straight line as an avenue through the woods from the Savannah road easterly in front of the residence known as the "cottage" and on to the line of the cemetery lot. Each of the plaintiffs is a lineal heir of one of the grantees in the deed from Oswald Eve, and is entitled to use said cemetery as a burial lot, and to use the wagon or carriage road as a means of access thereto; and they bring this action in their own right and for the benefit of others having the same rights. The defendant had both constructive and actual notice of the location and existence of the wagon or carriage road before he purchased the land through which it runs, and before he obstructed the same. The injury to plaintiffs by the closing of the roadway is, from its nature, irreparable in damages, and they have no adequate remedy at law. The prayers were: (1) That the defendant be required to remove said obstructions to the roadway and restore it to its former condition; (2) that he be permanently enjoined from maintaining any obstructions to the roadway; (3) for process.
The defendant having filed demurrers, both general and special, the plaintiffs amended their petition, and alleged, among other things, that Sara Adams was one of the grantees under the deed of Oswald Eve of March 7, 1826, and the tract of land over which the road passes was devised by her in her said will to her two nieces, Hannah B. Longstreet and Emma E. Longstreet, during their lives, with remainder to their children, as contained in paragraph 8 of the will, which contained the following:
The defendant holds the land under a deed from L. W. Mays, dated December 19, 1921, and recorded, and Mays held under a deed from E. J. Dorris and A. T. Heath, dated November 28, 1921, also recorded, containing the following provision:
"There is excepted from the conveyance, and reserved, one acre of land in the form of a square, embracing the family cemetery, and with a right of way and use of road leading from the cemetery to the Savannah road."
E. J. Dorris and A. T. Heath held under a deed from James L. Sibley and Mrs. Mattie Sibley dated October 23, 1919, and is recorded, conveying 58 1/4 acres known as the cottage tract, but containing the following provision: "Except one acre in the form of a square, with all timber thereon, which is the old family burying ground, together with the right of way in perpetuity over and across the land herein conveyed, from the Savannah road to the cemetery; said right of way to be for the use and benefit of all persons desiring to use the aforesaid cemetery"; and the reservation of the right of way was record notice to Jacob Phinizy, and said Sibley held under partition proceedings of the land of Sara Adams, and the return expressly stated that "title to the cemetery is in no way altered." The right of way was an easement running with the land by written grant and reservation as heretofore set out, and was not merely a right of way by prescription over the land of another, though it had been used for the purposes stated for nearly, if not more than, 100 years; and the action of the defendant in closing up the road was not merely an obstruction of the road, but was a trespass upon the property right of these plaintiffs, and was a nuisance in law, and is now a continuing nuisance. The plaintiffs further prayed that the defendant be restrained permanently from continuing the trespass and the operation of the nuisance, and that he be restrained from further interfering with the rights of plaintiffs to the use of the right of way from the Savannah road to the cemetery of their ancestors; and that, if the court should hold that equitable relief would be afforded by permitting the defendant to place a gate in the fence at each end of the road, then they prayed for such equitable relief.
The defendant demurred to the petition upon the grounds, among others: That it appears on the face of the petition that plaintiffs have an adequate remedy at law; that the only relief sought by the petition was mandatory injunction; that the petition seeks, not to restrain, but to perform acts that the petition fails to allege that the grantees, or any of them, other than Sara Adams, are dead, and, if deceased, that such other grantees died testate or intestate, and, if intestate, that...
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