Tietjen v. Meldrim

• Decision Date: 14 January 1930
• Docket Number: (No. 7281.)
• Citation: Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349 (Ga. 1930)
• Parties: TIETJEN et al. v. MELDRIM et al.
• Court: Georgia Supreme Court

169 Ga. 678

151 S.E. 349

TIETJEN et al.

v.MELDRIM et al.

(No. 7281.)

Supreme Court of Georgia.

Jan. 14, 1930.

(Syllabus by the Court.)

[COPYRIGHT MATERIAL OMITTED.]

Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.

Petition by Henry A. Tietjen and others against Judith P. Meldrim and another.Judgment for defendants, plaintiffs' motion for new trial was overruled, and plaintiffs bring error.Reversed.

Henry A. Tietjen, Adam Kessel, John Schwarz, Mrs. J. A. Scherer, Prank C. Dieter, as executor of the will of George Dieter, F. J. Schwarz, G. E. Schwarz, and Mrs. M. D. Schwarz, filed their petition against Judith F. and Lucius K. Meldrim, in which they make substantially the following case: The Wilmington Island Pleasure & Improvement Company owned two tracts of land upon Wilmington Island.On or about July 21, 1890, said company had said land surveyed and subdivided portions thereof into streets and lots.It had a plat of said lands made showing said subdivision, the streets and lots therein, and the portions of the lands not subdivided.In accordance with this plat, said company, on May 28, 1891, sold a number of lots in said subdivision to various purchasers, and in its deeds of conveyance described the lots so sold by the numbers thereof appearing on said map or plat, and as bounded upon certain streets appearing thereon.In 1892 the company had made another map or plat of its lands, showing said subdivision with the undivided portions thereof on the original plat subdivided into lots.Plaintiffs own lots 117, 118, 122, 124, 149, 151, 152, 154, 156, 157, 160, 162, 163, 169, 170, 171, 183, 184, 201, 203, 209, 210, 213, 218, 219, 225, 231, 232, 233, 239, 240, 241, 242, 249, 251, 252, 253, and 254 in said subdivision.In their deeds said lots are described by the numbers and as bounded by the streets and boulevards appearing on said plats of said subdivisions.Plaintiffs pur chased said lots with the understanding that the rights, members, and appurtenances incident thereto and so described in their deeds were in common with other purchasers in said subdivision.Subsequently the company subdivided the individual portion of the lands into streets and lots.After said company had sold some of the lots on said plans or maps, all of its unsold lots and other property were sold by a receiver under a decree granted by the superior court of Chatham county, and were purchased, on April 15, 1899, by Edward J. Kennedy, John F. Tietjen, Adam Kessel, George Dieter, and John Schwarz.The purchasers at the receiver's sale partitioned the lots among themselves.The partition was made by reference to the first plat or map of the subdivision, and the lots received by the purchasers in severalty were bounded by the streets, avenues, and parks as shown on said plat.Judith F. Meldrim owns lots 133, 134, 135, 136, 137, 138, 140, 141, 142, 143, and 146 in said subdivision.

Defendants have violated and are violating plaintiffs' rights of easement by willfully obstructing that portion of East boulevard about the terminus of Branch street also Branch and Kennedy streets, and North boulevard, and continue so to obstruct, against the protest of plaintiffs, by plowing up and planting the same, causing the ground to be soft and impassable, and thereby preventing plaintiffs from the comfortable use of said streets, in order to usurp the exclusive use thereof, and to prevent plaintiffs from using their common right to use the same, and have placed and are placing gradually therein obstructions consisting of hurricane roots, slabs, stumps, wire fences, water pipes, and other obstructions, and are causing their servants and agents to patrol the same, and to fire off guns thereon for the purpose of intimidating and interfering with the lot-owners, and particularly plaintiffs and the public passing over to and from and beyond said rights of way, streets, and boulevards, to other streets and boulevards in said subdivision, in violation of plaintiffs' rights of easement and in derogation of their title.Plaintiffs prayed that the defendants be permanently enjoined from so obstructing and interfering with the exercise of the rights of easement over any streets or ways in said subdivision.

Defendants, after admitting, in the second paragraph of their answer that the deeds to the lots owned by Judith F. Meldrim bound and describe them by reference to the recorded map of said subdivision, aver that said description and boundaries were for the sake of convenience only, and that in fact there never have been any streets, ways, or boulevards where defendant owns her lots, and that said boundaries are purely fictitious; and they deny that said map or platconstitutes a part of her deeds and title and that she accepted the same for the purposes above stated.In the thirteenth paragraph of their answer they deny that they are violating any of the rights of plaintiffs in the streets named or in any of the streets of said subdivision.They deny that they have ever used in common with others any easements in the streets, boulevards, and ways in controversy, and deny that they have perpetrated any of the wrongs complained of or violated any of the alleged rights of plaintiffs.By amendmentthey allege that the plaintiffs are not entitled to maintain their action in equity, for the reason that they have not done equity, and have not come into court with clean hands.Plaintiffs demurred generally to the answer and moved to strike it, upon various grounds.They demurred specially to the last two averments of the second paragraph of the answer, on the ground that said averments are conclusions of the pleader on a question of law, and set up no defense; and specially to the thirteenth paragraph of the answer, on the ground that it is evasive, sets up no valid issue or defense, and is a mere conclusion of the pleader, in that it fails to admit or deny the facts alleged, other than by a mere conclusion to the effect that they are not violating any of the rights of plaintiffs.In a second amendment to their answer the defendants made these allegations: (1)Plaintiffs have closed and permitted to be closed West boulevard at the corner of the street marked Kennedy street, and have permitted the same to be closed in other portions by the streets marked Stone street and Kennedy street.They have also closed and permitted to be closed that portion of East boulevard between First avenue and Third avenue, and have permitted the erection of structures and planting there and in other portions of said boulevard along many portions of the entire front.These ways have been closed by permitting the planting of various growths in the same, by the erection of fences and other obstructions, by placing brush therein, by the planting of hedges across the same, and by the digging of ditches across the same.(3) The manner in which plaintiffs have undertaken to acquire title to the ways, easements to which are claimed, is by obstruction of portions thereof upon which plaintiffs own property, and particularly the plaintiff Kessel.The plaintiff Tietjen has undertaken to acquire title to all interest which John F. Tietjen might have had upon said island, including those strips or portions of land lying between any of said lots, and the river adjacent to said island.He undertook to acquire title by a deed from John F. Tietjen to him, dated June 17, 1925.(4)Plaintiffs have undertaken to acquire title to the said ways by means of actual obstruction and occupancy thereof, thereby acquiring title to what the plaintiffs claim are public easements, and to acquire title from the public by abandonment and nonuser, and the plaintiff Tietjen has undertaken to acquire title by writing aforesaid.(6) The property which these defendants claim plaintiffs have taken and appropriated to their own use are lots 35 and 36 as shown on the second map of said subdivision above referred to, which property was dedicated by said company to the public use at the time of the inauguration of the scheme alleged in the petition, and which was actually accepted and used by the public.Plaintiffs took title to said property from said company by deed on April 15, 1899, and subsequently sold the same to various parties, thereby destroying the dedication and use of said property.(7) The abandonment of the alleged ways was actual, by failure of said company and of the plaintiffs or their predecessors in title to open the same for public use, and by failure of the public or any governmental authority to accept and use said ways; and such abandonment occurred a sufficiently long time ago to raise a presumption of abandonment and loss by nonuser.Plaintiffs demurred generally to the answer as amended, upon the grounds that it sets up no defense and no justification sufficient in law.They demurred specially to paragraphs 1, 3, 4, and 6 of the amended answer, upon the grounds that they do not constitute any defense in law or equity; that they do not assert any rights of the defendants to which the plaintiffs should give effect; that they do not show that any of the acts of the plaintiffs therein set up relate to the subject-matter in litigation; or that any of such acts induced any of the acts of the defendants.They further demurred specially to the following allegation in paragraph 7 of the second amendment: "And said defendants aver that such abandonment occurred a sufficiently long time ago to raise the presumption of abandonment and loss by nonuser, " because the same is a conclusion without facts on which to base it.They demurred to the allegation of abandonment, as a conclusion without facts on which to base it, not showing how said actual abandonment occurred, and how such abandonment was effected and by whom.The judge overruled said demurrer, and the plaintiffs excepted pendente lite.

On the trial evidence was introduced tending to prove the following facts: The Wilmington Island Pleasure &...