Thomas v. Hawkins

• Decision Date: 30 June 1856
• Docket Number: No. 27.,27.
• Citation: 20 Ga. 126
• Parties: Jesse S. Thomas, plaintiff in error. vs. Ezekiel Hawkins, defendant in error.
• Court: Georgia Supreme Court

20 Ga. 126

Jesse S. Thomas, plaintiff in error. vs. Ezekiel Hawkins, defendant in error.

No. 27.

Supreme Court of the State of Georgia

JUNE TERM, 1856.

In Equity, in Sumter Superior Court. Decided by Judge Allen, at Chambers, March 19th, 1856.

This was a bill filed by Ezekiel Hawkins, in behalf of himself and all others who might be interested in and who might become parties to the bill, against Jesse S. Thomas. The bill charges, that in the month of September, 1855, the said Thomas, secretly and without the knowledge of the complainant or the public generally, induced divers persons to sign a petition to the Inferior Court of Sumter County to change and alter the public road leading from Americus to Cuthbert via Providence in said county, so that, in the language of the bill, "the said road should be closed from the said road leading from Bottsford in said county to Culpepper's bridge, for about the distance of three-fourths of a mile to near the plantation of a Mr. Murray in said county, thereby forcing all the travellers from Americus to Cuthbert, or from Cuthbert to Americus, and the travel between the inhabitants in that vicinity, to go through Bottsford to arrive again on the direct road from Americus to Cuthbert"—said route being about a mile and a quarter farther than the old route; that said petition was considered by said Inferior Court in chambers, on the 26th day of September, and that said Court, without appointing commissioners to examine the proposed change, passed the following order:

"Petition having been made, &c, it is hereby ordered, inaccordance with the same, that the road leading from Culpepper Bridge, Kinchafoonee Creek, in Kinchafoonee Co., to Americus, be changed from a point at the forks of the roads in Kinchafoonee Swamp, and closed to the cross-roads near Mr. Drewery Murray\'s, so as to throw the same round by Bottsford— the same being alleged to be no farther, and a better way." Signed, &c.

The bill charges that said order, thus passed, is illegal and void, but that said Thomas, acting by authority of the same, has felled trees across and otherwise obstructed said public road, to the great inconvenience of complainant and the public generally; that complainant, with many others interested in the matter, petitioned said Inferior Court, at its last term, to rescind said order, and said Court refused to entertain the petition, on the ground that they "could not act on said order after it had been granted"; which decision the bill alleges to be contrary to Law and Equity. The bill further charges, that said Thomas still continues to obstruct that portion of said road described in said order, although he has been repeatedly requested to desist.

The bill prays that the said Thomas may be restrained from further obstructing said road, and commanded to remove the obstructions he has already placed in it, so that the same may be open to the use of the travelling public, and that said order passed by the Inferior Court be declared void and set aside.

The bill was sanctioned, and on the 23d of February, 1856, filed in the Clerk's office of Sumter Superior Court. The writ of injunction was attached on the 25th of that month, and on the 3d of March thereafter service was acknowledged by the defendant. On the 19th of March, notice having been waived, the case came on for a hearing at chambers, on a motion made by defendant to dissolve the injunction on the coming in of his answer. Before the hearing, complainant was permitted to file an amendment to his bill, which charges that he is particularly interested in the opening of the roadreferred to; that he keeps a house of entertainment on the road leading from Americus to Cuthbert, and that by the closing up of that portion of said road described in the order of the Inferior Court, the travel by his said house has been diminished; that he also owns a mill situated near his said house, which has lost custom on account of said road being closed. To the allowance of this amendment Counsel for defendant excepted. Defendant\'s answer was then read. The answer admits most of the facts charged in the bill; it denies that defendant acted secretly or in bad faith in procuring said order from the Inferior Court, or in closing up said road; denies that the change made has increased the distance of travel more than three quarters of a mile; denies the right of complainant to seek relief in behalf of the public; denies that any serious injury has been done the public by closing said road, alleging that it was an old "road and had fallen generally into disuse, most of the travel between Americus and Cuthbert being by Plains of Dura and not on said road; that there was no public place on said closed road, and it was not used by the neighbors even to get to Bottsford or Americus, or as a mill or church road. The answer states that the said road was a serious injury to defendant before it was closed, forming, together with other roads, an angle in his plantation, and causing him to keep long lines of fences at great expense; that he has now, acting in good faith under said order, moved said fences and sowed the land with oats, and it would be a great hardship and expense to defendant to replace said fences and have to lose his crop.

The answer insists that the order granted by the Inferior Court, and all the action of said Court in reference to said road, is legal and proper.

Upon this state of facts defendant's Counsel moved to dissolve said injunction, for the following reasons:

1st. Because there is no equity in said bill.

2d. The parties have a remedy at Law.

3d. Because the complainant has no interest, as appears by the bill and answer, in the subject-matter. 4th. That the injunction was affirmative—directing a thing to be done; and such an injunction ought only to be granted after a hearing and decree.

The Court refused to dissolve said injunction, and defendant's Counsel excepted, and now assigns said refusal, and also the judgment allowing said amendment to be filed to said bill, as error.

McCay & Hawkins, for plaintiff in error.

Smith & Crawford, for defendant in error.

By the Court.— Banning, J., delivering the opinion.

Was it right in the Court to over-rule the motion to dissolve the injunction? This is the only question in the case.

The injunction was a precept to Thomas, commanding him no longer to obstruct the road, but to remove the obstructions already placed by him in the road, so that the road might be open and free to the travelling public, and might be in as good a condition as it was in before it was obstructed by Thomas.

All the grounds on which the motion to dissolve this injunction was put, except the last ground, are included in the first; and the first was, that there was no equity in the bill.

Was there any equity in the bill?

Thomas, in stopping up the road, acted in accordance with an order of the Justices of the Inferior Court. Of course, therefore, if this order was valid, the injunction was wrong.

Was this order valid? It was if the Justices of the Inferior Court had power to pass it. Did they have this power?

The first section of the Act of 1799, "to empower the Inferior Courts of the several counties in this State to order the laying out of public roads, and to order the building and keeping in repair of public bridges, " is as follows: "That all the roads in the several counties of this State that have beenlaid out by virtue of any Act of the General Assembly, or by virtue of any order of Court, are hereby declared to be public roads; and that from time to time, and at all times hereafter, the Inferior Courts of the several counties in this State shall have full power and authority to order the laying out of public roads where the same may be necessary, and to discontinue such roads as now are or shall hereafter be made, as shall be found useless, and to alter the roads so as to make them more useful and convenient, as often as occasion shall require." (Marb. & Craw. 405.)

These words contain an express grant of power to the Inferior Courts to "discontinue" roads—to discontinue such roads "as shall be found useless;" that is, such roads as those Courts shall find to be useless. The question of the utility of existing roads, must be a question for such Courts. This must be the meaning of the words.

Has this grant of power been repealed by any subsequent Statute? The words containing it are not to be found in Cobb's Digest, whilst other words of the section are to be found in that Digest. This is also true of Prince's two Digests.

Why were the words left out of those Digests?

The 29th section of the Act of 1818, "to alter and amend the Road Laws of this State, " is as follows: "The Justices of the Inferior Courts of each county in the State, or a majority of them, shall have power and authority to hear and determine on all matters which may come before them relative to roads, bridges, &c, as are authorized by law, either in term time or while sitting for ordinary purposes, or at any special meeting held for that purpose." (Cobb's Dig. 952.)

The compilers of those Digests probably thought that the grant of power contained in these words, superseded that contained in the words aforesaid of...