Simmons v. Lindsay

• Citation: 144 Ga. 845,88 S.E. 199
• Decision Date: 15 March 1916
• Docket Number: (No. 303.)
• Parties: SIMMONS. v. LINDSAY et al.
• Court: Georgia Supreme Court

144 Ga. 845

88 S.E. 199

SIMMONS.

v.LINDSAY et al.

(No. 303.)

Supreme Court of Georgia.

March 15, 1916.

(Syllabus by the Court.)

Evans, P. J., dissenting in part.

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by J. M. Lindsay and others, trustees, against W. H. Simmons. Judgment for plaintiffs, and defendant brings error. Reversed.

Lindsay and others, as trustees of the Armuchee Baptist Church, brought an equitable petition against W. H. Simmons, alleging the following, among other things: On June 1, 1854, Willis Selman and James W. Selman conveyed to the then trustees of the church, of whom the plaintiffs are successors, a certain described lot of land. The deed, after describing the land, contained the following words:

"Together with the free privilege of the spring north of said church, and also the right of way to the same."

At the date of the deed there was a public road leading from the church to the spring, which was continuously used by the trustees, members, and congregation of the church as the right of way to the spring until 1914, when the defendant, who had bought the land on which the spring was located (acquiring it under a chain of title from the Selmans), erected a fence across the road, and completely obstructed it, thereby preventing the members of the church and the congregation from reaching the spring on foot or in vehicles, and thus depriving them of the use of the spring to obtain water for themselves and their stock; and they have been compelled to go a distance of about a quarter of a mile to a private well, where they have been able to obtain water only by the kindness of the owner of it. The spring and the right of way have been open to and used by the general public for more than 60 years as a place at which to obtain water for themselves and their stock, without objection from the owner of the land, until the defendant purchased it and erected the fence. The public school of the district is now, and for a number of years past has been, located adjacent to the property owned by the church, and the right of way and the spring have been used by the children continuously for 60 years or more. The closing of the way deprives, not only the plaintiffs, but also the school children and the general public, of such use. The prayers were that the defendant be enjoined from main-taming the obstruction across the right of way, and for general relief and process.

The defendant demurred to the petition, and answered it. For want of sufficient information, he did not admit or deny the making by the two Selmans of the deed under which the plaintiffs claimed. He admitted that in 1914 he erected, and has since maintained, a fence around the spring, but he alleged that he erected gates so as to admit members of the church or any other person who had a right to go to the spring, and that it only required the lifting of a latch in order to pass through such gate. He averred that he did not intend to deprive the members of the church from getting water at the spring, but was willing for them to do so, and had prepared a place on the side of the road outside of the fence for the watering of stock. He denied that the members of the church were compelled to go some distance to get water. He alleged that the pupils of the school, without legal authority, overran the premises daily, committing all manner of depredations and acts of nuisance, until the situation became intolerable, and that his sole object in constructing the fence around the spring was to protect it and the springhouse, where he kept milk and vegetables, from being subject to trespass and intrusion from the school children and the general public. He further alleged that the members of the church and the congregation had at all times visited the spring; that the church only met (except on rare occasions) once a month, and that it would only require one of the plaintiffs to open the gate 12 times during the year in order to reach the spring, while, under the conditions existing before the building of the fence, the defendant's property was overrun practically every day by persons having no authority to do so.

Upon the hearing the presiding judge ordered that the defendant should be enjoined as prayed until the further order of the court. The defendant excepted.

M. B. Eubanks, of Rome, for plaintiff in error.

Maddox & Doyal, of Rome, for defendants in error.

LUMPKIN, J. (after stating the facts as above). [1] 1. The deed under which the plaintiffs claim was made by Willis Selman and James W. Selman to themselves and others as trustees of the church. James W. Selman, one of the grantors, and also, in his capacity as trustee, one of the...