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Lawskills.com Georgia Caselaw
MOSS v. THOMSON COMPANY.
19188.
HAWKINS, Justice.
Injunction. Before Judge Anderson. Columbia Superior Court. September 22, 1955.
1. While a petition to enjoin an alleged trespass upon realty which fails to describe the land involved with that degree of certainty that will establish the identity of the land is subject to general demurrer (Laurens County Board of Education v. Stewart, 187 Ga. 389, 200 S. E. 294), if the description contained in the petition furnishes a key whereby the identity of the land may be made certain by extrinsic proof it is sufficient as against a general demurrer. Bruce v. Strickland, 201 Ga. 526 (40 S. E. 2d 386); Miller v. Stewart, 202 Ga. 127 (42 S. E. 2d 445). Applying these rulings, the allegations of the plaintiff's petition describing the property involved as being Tract "A", as shown on a designated, duly recorded plat were sufficient to furnish a key to the identity of the land.
2. In order to maintain an action for trespass upon realty it is essential that the plaintiff show either that he has title to the land, or that he was in possession thereof at the time of the alleged trespass. James v. Riley, 181 Ga. 454 (2) (182 S. E. 604). One who is bona fide in possession of land under claim of ownership may, upon proof of such possession, and such circumstances as would render the issuance of the writ of injunction necessary and proper, maintain an action to enjoin interference with his possession. Downing v. Anderson, 126 Ga. 373 (55 S. E. 184).
3. While ordinarily a court of equity will not interfere to prevent a mere trespass, but, as a general rule, will leave the injured party to his legal remedy, the threatened and attempted erection of a fence upon the land of another so as to obstruct ingress and egress, and seriously interfere with the use, occupancy and enjoyment of the property, as alleged in the instant case, would constitute such a continuous trespass as will be enjoined. Miller v. Stewart, 202 Ga. 127, supra, and cases there cited; Gainesville Midland Railroad Co. v. Tyner, 204 Ga. 535 (50 S. E. 2d 108); Roughton v. Thiele Kaolin Co., 209 Ga. 577 (74 S. E. 2d 844).
4. Irrespective of whether the deeds introduced in evidence by the plaintiff for the purpose of showing title in it to the land involved were void for uncertainty of description, the petition alleged, and the evidence introduced upon the interlocutory hearing showed, that the plaintiff was in possession of the land described in the petition at the time of the commission of the alleged trespass, and under the foregoing rulings the trial judge did not err in overruling the general demurrer to the petition or in granting an interlocutory injunction restraining the defendant from the erection of the fence described in the petition.
Leonard S. Counts, Counts & Collins, O. L. Collins, for plaintiff in error.
ARGUED JANUARY 10, 1956 -- DECIDED FEBRUARY 14, 1956.
Friday October 10 19:32 CDT


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