Thomas v. Douglas, 64959
| Decision Date | 14 January 1983 |
| Docket Number | No. 64959,64959 |
| Citation | 165 Ga.App. 128,299 S.E.2d 605 |
| Parties | THOMAS v. DOUGLAS. |
| Court | Georgia Court of Appeals |
James M. Thomas, Savannah, for appellant.
John R. Thigpen, Blackshear, for appellee.
This action arose as the result of a dispute between the parties (plaintiff and defendant) about the correct location of the boundaries between their respective real properties and with regard to the use of and the property rights of the parties in a certain alley or lane. Plaintiff originally sought injunctive relief, as well as that the court declare her right and title to the property therein described, including the removal of the obstruction placed in the alley by the defendant, special damages of $150 by reason of the destruction by the defendant of a fence plaintiff had erected along her property line adjacent to the alley and seeking other damages for the trespass and destruction of plaintiff's fence and property. She contended therein that the defendant had willfully, maliciously, and unlawfully encroached upon her property on the southeast boundary and western boundary thereof by destroying her fence and constructing a chain link fence upon plaintiff's property and also in attempting to close the 20 foot alley contending same had been openly used by the public since 1920.
The defendant answered, in general denying the claim, admitting only jurisdiction. Defendant contends that her property actually extends over the alley and adjoins the plaintiff's property, the alley being only a 10 foot alley which has never been dedicated to public use, completely on defendant's property and the fence she destroyed or removed was actually being constructed on her property and she had a right to construct the chain link fence.
After trial by jury a verdict was returned in favor of the plaintiff awarding her $150 special damages and $7,500 for punitive damages. Whereupon, the judgment followed the verdict and provided that the plaintiff's land line was established in accordance with her survey submitted in evidence "bordered on the western boundary by the 20 foot alley," and the "plaintiff is entitled to an easement over the 20 foot alley," the court ordering the chain link fence on plaintiff's western boundary to be removed and the plaintiff to recover the damages awarded by the jury. Defendant appeals. Held:
1. Defendant (appellant) admits that the Supreme Court case of Colley v. Dillon, 247 Ga. 4, 273 S.E.2d 606, which quotes from Smith v. Morgan, 222 Ga. 7, 148 S.E.2d 385, controls, that is, that this is a land line dispute and does not involve title to the land (although originally the plaintiff sought equitable relief). Accordingly, we proceed to consideration of the case based upon the errors enumerated.
2. The first enumeration of error contends the trial court erred in charging the jury that "a deed which conveys land described as bounded by an alley carries with it the base fee title to half the area of the alley, together with an easement over its full width." Defendant contends that the trial court erred in not qualifying this charge as requested. That is, that this was an incomplete statement of the law, and the charge should have provided that the grantor have title to the land represented as an alley before a covenant of easement over it can be applied. The written request was based upon Cantrell v. Kaylor, 201 Ga. 406, 39 S.E.2d 657, which case quoted from Murphey v. Harker, 115 Ga. 77(3), 41 S.E. 585, that a deed conveying described land bounded by an alley confers the right to the free and unobstructed use and enjoyment of the alley " 'which the grantor had laid out and set apart for such use, and the fee to which was at the time of the conveyance in the grantor.' " We are concerned here with the paucity of the evidence surrounding the alley as to whether or not it was a public or private way and as to when it came into existence there being evidence that it had been in existence for a number of years. First of all, we are not concerned here with the issue of title but only as to the location of the alley either of 10 foot width entirely located within defendant's claimed property or 20 foot width and a boundary line of plaintiff's property depending upon the testimony submitted by the parties. Here there was conflicting evidence that the municipality in which it was located had exercised dominion over it as an alley of the city; but from the evidence introduced by the parties it is evident that they each owned property in the area, albeit the defendant claimed her property extended over the alley of 10 foot width so that her line adjoined the plaintiff's and the alley was entirely on her property. Nevertheless, she...
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