Thompson v. Turner

• Decision Date: 30 September 1882
• Citation: 69 Ga. 219
• Parties: Thompson. vs. Turner
• Court: Georgia Supreme Court

69 Ga. 219

Thompson. vs. Turner

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Equity. Practice in Superior Court. Easements. Verdict. Before Judge TOMPKlNS. Chatham Superior Court. December Term, 1881.

Turner owned a.of in the city of Savannah, for many years, and built a house on one-half of it. Upon his death, his widow, Mrs. Turner, became his executrix, and as such sold the property. The improved half-lot was purchased by a vendor under whom Thompson bought; the other half-lot by Mrs. Turner with the assent of all the legatees. There was a dispute about the line between the two half-lots. Mrs. Turner claimed a line located by old palings, and lines dividing this from adjoining tenements and lots. The other line was one run by the city surveyor according to the city map and according to the location of the well and other indices. On the line which was claimedby her as the correct line, Mrs. Turner put up a high planking or obstruction, within a few inches of Thompson\'s house, and ran a line of fence so as to cut into Thompson\'s out-buildings. He filed a bill to compel the removal of the obstructions to his light and air, and to require the removal of the fence line to the true line between the lots as claimed by him. The jury found in his favor, and the case was brought to the Supreme Court and returned for a new trial

(See 58 Ga., 268, where the case is fully reported.)

On the next trial in the Superior Court, the jury returned the following verdict:

" We, the jury, find for the complainant, that the true line is the last survey of March 15, 1875, as given by city surveyor Hogg; and, further. find that the obstructions are on Thompson's land, and should be removed. March 4, 1878.

Upon this verdict the chancellor entered the following decree:

" Wherefore it is now considered, ordered, adjudged and decreed by the court that the said verdict be, and the same is hereby made the decree of this court; and, further, that the defendant be, and she is hereby required and ordered to forthwith remove the fence complained of in the bill to the line of division between-the two half-lots mentioned in the said verdict, the same being the line described in the bill and claimed toy complainant; and, further, that the defendant be, and she is hereby required and ordered forthwith to remove the obstructions to the eastern windows of complaint's house, and that she, the said defendant, her agents and assigns be, and they are hereby perpetually enjoined from again erecting said obstructions; and, further that defendant do pay eighteen dollars and fifteen cents costs in this behalf incurred. March 5, 1878."

Subsequently, Thompson proceeded against Mrs. Turner to have her attached for contempt, alleging that she had not complied with the decree set out above. A rule nisi was issued, and Mrs. Turner answered, denying that she was in contempt, and alleging that in obedience to the decree she had removed the obstructions mentioned and had not again erected them on Thompson's land, or inderogation of his rights, and that she had fully complied with the decree. The chancellor submitted the case to a jury.

It appeared that after the former decree, Mrs. Turner had not taken down the obstructions, but had caused them and the fence line to be removed so as to be entirely upon her own land. The practical result of this was to remove the obstructions several inches further from Thompson's windows.

The jury found the following verdict:

" We, the jury, find for the complainant, in this, that the Obstructions to said windows be taken down. And that defendant have the right to erect such a building as she may think proper, on such vacant half-lot. Savannah, March 25, 1880."

The chancellor entered up a decree construing the former decree as perpetually enjoining Mrs. Turner from obstructing Thompson's windows and the light and air supplied through them, and requiring Mrs. Turner to take down the obstructions on pain of being considered in contempt.

Defendant moved for a new trial, on the following

among other grounds:

(1.) Because the judge charged that the finding for the complainant in the verdict of March, 1878, was a complete verdict, and the rest of the language therein contained merely reasons for the verdict, and that bad reasons would not vitiate a verdict.

(2.) Because no jury has yet found against defendant the questions required by the Supreme Court to be answered by the jury, that is to say, is light and air enough for the convenience of the inmates of the house now let in, or can Thompson get light from other windows already opened or which he can open without detriment or dang-er to...