Thombley v. Hightower

• Decision Date: 27 February 1936
• Docket Number: No. 25293.,25293.
• Citation: 52 Ga.App. 716,184 S.E. 331
• Parties: THOMBLEY et al. v. HIGHTOWER.
• Court: Georgia Court of Appeals

52 Ga.App. 716

184 S.E. 331

THOMBLEY et al.

v.HIGHTOWER.

No. 25293.

Court of Appeals of Georgia,

Division No. 2.

Feb. 27, 1936.

Syllabus by Editorial Staff.

Error from City Court of Valdosta; R. G. Dickenson, Judge.

Suit by Mrs. E. J. Thombley and another against O. H. Hightower. To review a judgment dismissing the suit on demurrer to the petition, plaintiffs bring error.

Reversed.

Sapp & Barnes, of Douglas, for plaintiffs in error.

Franklin & Eberhardt, of Valdosta, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

Mrs. E. G. Thombley and G. C. Ellis filed against O. H. Hightower their joint action for damages on account of alleged trespass committed by certain cattle belonging to the defendant. It is alleged in the petition that Mrs. E. G. Thombley owned certain described land lying in Lowndes county and wholly within the city limits of Valdosta, the county site of said county; that in said county "the so called 'stock law' [Code 1933, § 62-501 et seq.] is not of force, but in this respect the county is termed a 'fence law' [Code 1933, § 62-401 et seq.] county"; that the land described is uninclosed; that, at the time the cattle trespassed on the land and destroyed the crops growing thereon, there was of force in said city an ordinance that "it shall be unlawful for any person owning or keeping any * * * cattle * * * or other domestic animals * * * to allow or permit them to run at large within the city, and any such person who allows or permits any such domestic animals * * * to trespass upon the premises of any person, or to injure or damage his property, shall be guilty of a violation of this section, " and that all cattle running at large on the streets of Valdosta shall be impounded by the police; that Mrs. E. G. Thombley and G. C. Ellis entered into an oral "share-croppers' agreement" by the terms of which the land was to be farmed, and the profits realized from the sale of the crops grown to be divided between them equally; and that on divers occasions the cattle of the defendant came on said premises and damaged and destroyed certain growing crops of both plaintiffs in the sum alleged. The petition goes into detail as to the times the cattle entered upon these lands and. as to the nature, quantity, and value of the crops destroyed by the cattle. It is alleged that the defendant was notified that his cattle were so trespassing, and was requested to keep them up and off of these lands, which he failed and refused to do; that the defendant operated a dairy in Valdosta, and the cattle were owned and maintained by him in connection therewith; that he was "aware of the damages causedby his cows, and thoroughly aware that further trespasses were constantly threatened, and defendant made no effort whatsoever to prevent the re-entry of said cows upon the land aforesaid. Plaintiffs allege that the defendant wantonly, with an entire disregard for the rights of others, made no effort whatsoever to prevent the recurrence of the several acts of the trespass herein charged. In consequence, plaintiffs pray for exemplary damages in the sum of $1,-000." The defendant demurred to the petition, on the ground that no cause of action is set up against him, and that the plaintiffs are not entitled to recover such damages as are therein sought. He demurred specially because there is a misjoinder of parties plaintiff and of causes of action, because it affirmatively appears from the allegations of the petition that, Mrs. E. G. Thombley is the landlord and G. C. Ellis is the sharecropper under her as to the crops referred to in the petition, and, if there be any cause of action, it is solely and exclusively in favor of Mrs. Thombley.

The defendant, by further demurrer, attacked the act of 1901 (Ga.Laws 1901, p. 670), amending the charter of the city of Valdosta, in which it was provided that the mayor and council thereof should have power and authority to regulate the keeping of domestic animals within its limits and to prevent them from running at large therein and to provide for the impounding of any of such animals found upon its streets by its police officers, and also attacked the ordinance passed pursuant to said charter amendment, upon the ground that they were unconstitutional and void, in that they violated that section of the Constitution of this state declaring that "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law" (Const. art. 1, § 4, par. 1, Code 1933, § 2-401), for the reason that there was in existence and effective, as to counties not having the stock law in effect, the law providing for the inclosure of lands by fences as provided in chapter 62-4 of the Code (section 62-401 et seq.) and also section 62-801 of the Code to the effect that the owners of animals in such counties would not be liable where they trespassed on the lands which were not inclosed as provided in the chapter 62-4 of the Code, and also because said char ter amendment and ordinance were inconsistent with and repugnant to said general laws in the Code, and therefore void and unenforceable, if construed to mean that owners of land in said city did not have to inclose the same in order to recover for a trespass of cattle thereon. The judge sustained the demurrers and dismissed the action, holding, however, that the act amending the charter of Valdosta and the city ordinance were not unconstitutional, but that they should not be construed as permitting a recovery for a trespass on lands not inclosed as provided in the fence laws of this state. To the judgment of dismissal, the plaintiffs excepted.

The right to enjoyment of private property is an absolute right of every citizen, and every act of another which unlawfully interferes with such enjoyment gives rise to a cause of action. Any act which deprives the owner of personal property of the peaceful and quiet possession of such property is a tort for which the injured party may maintain an action. Code 1933, §§ 105-1402, 105-1406. While this is true, Georgia for the most part is unfenced, and domestic stock may graze at large upon the uninclosed lands of persons without committing trespass. Macon, etc. R. Co. v. Lester, 30 Ga. 911; Georgia R. & B. Co. v. Neely, 56 Ga. 540; Georgia R., etc., Co. v. Churchill, 113 Ga. 12, 38 S.E. 336. Except in counties where the stock law has been adopted, there is free range and pasturage, and persons...