Sullivan v. Farlow

• Citation: 5 S.E.2d 641,189 Ga. 186
• Decision Date: 14 November 1939
• Docket Number: 13089.
• Parties: SULLIVAN v. FARLOW.
• Court: Supreme Court of Georgia

5 S.E.2d 641

189 Ga. 186

SULLIVAN v. FARLOW.

No. 13089.

Supreme Court of Georgia

November 14, 1939

Syllabus by the Court.

1. The allowance of the amendment merely made more certain the description of the easement claimed, and was not subject to the objection that it set forth a new cause of action.

2. Equity has jurisdiction to enjoin a continuing trespass.

3. No abuse of discretion was shown in granting the injunction.

Mrs Farlow brought suit against Sullivan, alleging that she is the owner of a lot in the city of Augusta, Georgia, bounded on the east by the property of Sullivan; that the entrance to her property is through a driveway approximately ten feet wide on the east side of the lot, which said driveway is bounded on the east by the property of the defendant; that petitioner and her predecessors in title have kept said driveway in repair at their own expense for more than seven years; that a few days before the suit was filed, when petitioner's husband brought his car out of the garage to go to his office, he found, about two feet from the eastern edge of the driveway, an obstruction placed therein by the defendant, consisting of a cement post about five feet above the ground, and about six inches thick; that, having no other means of egress, he removed the obstruction; that defendant is preparing to place in the driveway a wooden fence which in addition to disfiguring the landscape, will interfere with the ingress and egress of petitioner and her family into and out of her property; that the placing of a fence beyond the hedge now representing the western boundary line of defendant's property would leave too narrow a space between the fence and tree located on the sidewalk in front of petitioner's property, the tree being of many years growth and petitioner is unwilling to cut it down; that the defendant now has located on his premises, on the lot immediately east of petitioner's property, posts and planks, with which he intends to erect a fence, and has threatened and is preparing so to erect the fence as to close the driveway as a means of ingress and egress for petitioner and that the closing of the driveway was and is a nuisance and injurious to her property, and that the driveway is her only means of ingress and egress. She prayed that the defendant be enjoined from placing any obstruction in the driveway. The defendant, among other grounds of demurrer, protested, 'that plaintiff's petition fails to show how much, if any, of his driveway protrudes over the land of defendant.' The plaintiff amended her petition by alleging: 'That petitioner, and her predecessor in title, Mrs. Jewel Bird White, have been in the uninterrupted use, for more than seven years, of a portion of the property of said defendant, which has a frontage on McDowell Street of 20 inches, and runs back in a southern direction 29 feet along the properly line of petitioner, the same being triangular in shape, and being 20 inches at its widest point,--that is, on the northern line of said triangle, and running to a point 29 feet south of McDowell Street. That said driveway is a private way, less than 15 feet in width, and the said strip 20 inches on its northern point, and running to a point 29 feet south by McDowell Street, is the same property originally appropriated by petitioner's predecessor in title, and petitioner's...