Slaughter v. Land

• Decision Date: 13 June 1940
• Docket Number: 13307
• Parties: SLAUGHTER v. LAND et al.
• Court: Georgia Supreme Court

9 S.E.2d 754

190 Ga. 491

SLAUGHTER v. LAND et al.

13307

Supreme Court of Georgia

June 13, 1940

Swift Pease, Davidson & Swinson and W. M. Page, all of Columbus, for plaintiff in error.

Ed Wohlwender and Ernest C. Britton, both of Columbus, for defendants in error.

The members of a church filed a petition for injunction, alleging that they held title by adverse possession for church purposes for more than twenty years of a five-acre tract of land, containing a spring and pool. The land was described as: '5 acres * * * more or less, in the southeast corner of land lot No. 80 in the 8th district of Muscogee County, Georgia, * * * for baptismal purposes a large spring and pool located on the northwest portion of said land * * * on which plaintiffs' church is located * * * said 5 acres, more or less, having the east line of said lot and the south line of said lot for its eastern and southern boundary lines.' It was alleged that, because of the location of a public road on the north side of the property, the absence of a fence to enclose the same, and the presence of the spring and large trees, people would drive automobiles on the grounds at night, throw bottles, and make disagreeable trash; and therefore, about five years ago, the plaintiffs 'permitted defendant to run a temporary fence across that portion of same so as to prevent these parties from using said spring and the woods,' although it does not appear as to why the defendant desired to erect the fence; that the defendant had actual and constructive notice of plaintiffs' title and their 'being in possession of said 5 acres,' although he had previously, in 1931 received a deed conveying the entire land lot without excepting such tract; that 'after granting defendant permission to put up [said] temporary fence * * * for the purposes aforesaid, defendant now denies plaintiffs * * * the right to go upon that portion of said five acres now cut off by [said] fence, and to use the spring and grounds for church purposes as aforesaid; thereby causing plaintiffs irreparable injury and damage;' that ' should defendant, in his exercising ownership over that portion of said five acres now owned by [plaintiffs] which is now cut off by said fence, decide to cut the growing trees and cultivate or to sell said land, [it] would cause irreparable injury and damage to plaintiffs;' and that plaintiffs have no remedy at law. They pray that defendant be enjoined from interfering with plaintiffs in the possession, custody, or control of that part of the said 5 acres which is now cut off by said fence; and from cutting any trees on, cultivating, or selling said part so cut off by said fence; that complete justice be determined between the parties; and that plaintiffs have such further equitable relief as may be meet and proper. The defendant excepted to the overruling of his demurrers. The general demurrer attacked the petition as insufficient in law and equity, as failing to show title, as showing too indefinite a description of the property to frame a decree and on the ground that plaintiffs have an adequate remedy at law. Special grounds of demurrer attacked the petition as having no proper plaintiffs, and particular paragraphs as irrelevant and showing no threatened injury.

Syllabus Opinion by the Court

JENKINS Justice.

1. While the rule is well established in this State that the cutting of timber may be enjoined, though the defendant be solvent, where there are frequent acts of trespass accompanied with threats to continue, or the circumstances indicate that the trespasses will recur from day to day (Kimbrell v. Thomas, 139 Ga. 146[1], 147, 76 S.E. 1024, and cit.; Moore & Co. v. Dougherty, Allen & Co., 146 Ga. 176[2], 179, 91 S.E. 14; Couey v. Talalah Estates Corp., 183 Ga. 442, 445, 188 S.E. 822, and cit.; Kirkland v. Odum, 156 Ga. 131, 135, 118 S.E. 706; Elliott v. Adams, 173 Ga. 312, 313[7], 323, 160 S.E. 336; Code, § 55-104), yet a mere apprehension...