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HANNAH et al. v. KENNY et al.
Injunction. Before Judge Guess. DeKalb Superior Court. March 17, 1954.
MOBLEY, Justice.
1. There is no merit in the motion to dismiss the bill of exceptions.
2. Prior to the passage of the act approved December 22, 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 453), abolishing exceptions pendente lite in causes then or thereafter pending, where no exceptions pendente lite were filed to a judgment overruling a demurrer, an exception to such ruling contained in the bill of exceptions, presented more than twenty days after the date of the ruling complained of, was too late for consideration. Leggett v. Alazos, 209 Ga. 477 (1) (74 S. E. 2d 69), and cases cited. Accordingly, since the judgment here complained of was rendered on May 11, 1953, more than seven months prior to the passage of said act abolishing exceptions pendente lite, its provisions are not applicable in the present case, and an assignment of error in the bill of exceptions which was filed more than eleven months after rendition of such judgment can not be considered.
3. The first special ground of the amended motion for new trial assigns error because the trial court excluded from the consideration of the jury petitioners' exhibit No. 16, the same being alleged to be the deed from Georgia Power Company to the Ingleside Church of God, together with a plat slowing the location of lots 4, 5, 6, and 7, Block 30, Ingleside Subdivision. The exhibit referred to is neither set out in this ground of the amended motion, nor attached thereto, and therefore this ground can not be considered. Dowdell v. State, 200 Ga. 775 (3) (38 S. E. 2d 780); Pippin v. State, 205 Ga. 316 (7) (53 S. E. 2d 482); Darden v. State, 208 Ga. 599 (1) (68 S. E. 2d 559).
4. The second special ground of the motion for new trial assigns error because the trial court failed to charge the conditions and circumstances out of which abandonment will arise and, in case of abandonment, to whom the abandoned estate reverts. The court in charging on abandonment instructed the jury among other things: "Now, before you would be authorized to believe and find that a street was forfeited or abandoned. you would have to find from the evidence that there was a clear and unequivocal intention of the people who owned the property to abandon that street. It would have to be such in abaondement as would be inconsistent with the clause in the deed wherein the street was laid out and provided for the people. If you should believe that it was abandoned, that there was some manifestation on the part of the predecessors in title that they were to abandon this street and did abandon it, and the right to use this street was forfeited, then I charge you that you could be authorized to find for the defendants." If further instructions were desired, a timely request should have been made therefor.
5. The third special ground assigns error because the trial court failed to charge the jury as to location and to instruct the jury to fix the location of Grand Avenue. No question as to the location of Grand Avenue was raised by the pleadings, and in the absence of a timely request, the court did not err in failing to charge on this question. Palmer v. Hinson, 201 Ga. 654 (3) (40 S. E. 2d 526).
6. The fourth special ground assigns error because the trial court failed to charge all the law applicable to the contentions of the parties and the facts in the case. After charging on the contentions of the respective parties, the court told the jury: "Now those are the contentions of the parties in the case substantially and these are the papers which you will have out with you, and you may read them for yourselves and see just what the parties set forth of the motion for new trial.
7. The evidence was insufficient to support the verdict of the jury, finding that the defendants acquired title by adverse possession, and consequently the trial court erred in decreeing title in the defendants, and in permanently enjoining the petitioners from using Grand Avenue for purposes of ingress and egress.
Clyde Hannah and others as Trustees of the Ingleside Church of God, and W. L. Hudgins individually, filed in DeKalb Superior Court, against R. M. Kenny and William R. Stanford, a petition which as amended alleged substantially the following: Petitioners are owners of certain houses in DeKalb County on designated lots in Block 30 and 31 of Ingleside Subdivision. Defendant Kenny owns lots 1 and 2, and defendant Stanford owns lots 3 and 4 in Block 31. Separating Blocks 30 and 31 is a 50-foot street known as Grand Avenue. Lots in Block 30 and 31 are planned and surveyed that one end of each lot fronts Grant Avenue. The owners and subdividers sold lots to purchasers and described them as being lots on the Ingleside property as per plat recorded January 22, 1892, and the purchasers of lots in Block 30 and 31 acquired a valid vested easement in and to Grand Avenue, which easment runs with the land. Defendants are seeking to deprive petitioners of the use and benefit of their easement in Grand Avenue, which petitioners have the right of in respect to their respective lots, and defendant Kenny is commencing to erect a building in and on Grand Avenue to the injury of petitioners, and against their rights therein. The injury is irreperable, and petitioners do not have an adequate remedy at law. The injury is irreparable, and petitioners do not have an adequate remedy at law. The prayers, besides for process and a rule nisi, were, that the defendants be enjoined from committing the acts of damage and trespass complained of, and that petitioners have general equitable relief.
The defendant Kenny filed a demurrer to the original petition on general and special grounds, and an answer which as amended denied material allegations of the petition and averred: Grand Avenue was never open to public use, has never been used by the public in general nor by any of the abutting landowners as a street for ingress or egress, and has never been accepted by any public authority or the public in general; defendant has acquired title in and to said street by reason of his continuous, open, and notorious adverse possession thereof for more than twenty years and under a claim of right. The only prayer in the answer was that the petition be dismissed.
The petitioners filed a demurrer to the amended answer. On May 11, 1953, the trial court overruled the petitioners' demurrer to the amended answer, and the defendants' demurrer to the original petition. So far as appears from the record, no exceptions pendente lite were filed to the above ruling on demurrer.
On May 26, 1953, the trial court granted a motion of the defendant Kenny to consolidate with the present case an equitable proceeding in which Kenny sought an injunction against Clarence C. Cates and others, where the only remaining issue was whether a temporary injunction previously granted should be made permanent.
On the trial Homer Harvey, Clerk of the Ingleside Church of God, testified in part: The church owned certain lots abutting on Grand Avenue. A building of the defendants extends 5 feet into Grand Avenue. The church has used Grand Avenue for ingress and egress since 1950 and for parking and getting into the back part of the church property. There are no dwellings in Block 30 where the church property is. There are three houses and a garage apartment in Block 31 facing old Stone Mountain Road. Defendant Stanford's house or the old Davis house, the only one built to face Grand Avenue, is within 3 feet of Grand Avenue. There is a chicken house on the portion of Grand Avenue at the rear of the Stanford house, directly back of the church. It has been there a long time and is now rotted down.
L. O. Foster testified for the petitioners: Grand Avenue is now open. It has not been blocked for 32 years during which time it has been used for ingress and egress. Practically all of a little store building, the overall length of which is some 37 feet, is located in Grand Avenue and the rest of it is in Stone Mountain Road. It has been there 32 years. A wire fence was around the store but it did not completely close Grand Avenue. The Methodist Church, which was formerly located where petitioners' church now stands, always used Grand Avenue for parking and as a means of ingress and egress.
W. L. Hudgins testified for petitioners: He has occupied his home on Stone Mountain Road since 1918. The Georgia Power Company built a carline beyond Grand Avenue and put up some barbed wire. Witness thought that was the line and put up some chicken wire which fenced in all of Grand Avenue back of his lot for 8 or 10 years. The fence rotted down and that occasion for anybody wanting to drive through there and Grand Avenue was never opened as a street.
Mrs. Pauline H. Davis testified for the defendants: She lived on the lot now owned by the defendant Kenny from 1905 to 1941. A plat witness has had for 50 years shows Grand Avenue on the north side of her property. It was never opened or used as a street from 1905 to 1941. The Methodist Church claimed the property up to witness's property but never did use it. They tried to get the little alley but were told they could not get it because witness had been using it too long, so they never did get possession of it. Witness used the area known as Grand Avenue as a garden and chicken yard continuously during the time she lived there. Some of Grand Avenue was inclosed. The chicken pen is still there.
The jury returned a verdict as follows: "We the jury find for the defendant and for the injunction."
The petitioners' amended motion for new trial was denied, and the exception is to that judgment. Error is also assigned in the bill of exceptions on the judgment overruling the demurrer to the answer as amended.
Other facts will be stated in the opinion.
1-6. The rulings announced in headnotes 1 through 6 do not require elaboration.
7. Under the uncontradicted evidence, the petitioners and the defendants, as purchasers of their respective lots abutting on Grand Avenue, acquired title to the lots, and the fee in the land embraced in Grand Avenue became vested in the respective parties as owners of the abutting lots to the middle of the street, subject to the rights-of-way over the same, in favor of all purchasers of lots in the subdivision for the purposes of ingress and egress to and from their lots. Tietjen v. Meldrim, 169 Ga. 678 (9) (151 S. E. 349).
The evidence in the present case, to the effect that Grand Avenue had never been opened as a street, but on the contrary defendants and their predecessors for more than 20 years maintained thereon a store building, a chicken yard, and a vegetable garden, was sufficient to authorize a finding by the jury that such conduct on the part of the owners in allowing the street to be used in defiance of the easements showed an intention to abandon Grand Avenue as a street. Tietjen v. Meldrim, supra.
"Before prescription can arise under an asserted claim of right, the claim must be honestly entertained. To enter upon land without any right to do so and without the bona fide claim of any right to do so is a bald trespass, which, it is true, may give the possessor, so entering, a form of property in his bare possession sufficient to enable him to hold the land as against subsequent intruders, but which can never ripen into prescriptive title. A person entering upon lands, not claiming in good faith the right to do so by virtue of any title of his own or by virtue of some agreement with someone else whom he believes to hold the title, is called a squatter. A squatter can never gain prescriptive title to land, no matter how long he holds the possession. His possession is never considered as adverse." Powell on Actions for Land (Rev. ed.) 389 327. See also Code 85-402.
"A mere squatter on a lot of land, without color of title or owner by conveying the land to other purchasers who have full knowledge of the nature and character of the title when they purchase it, although they may have been in possession of it for seven years under such title." Compton v. Newton, 129 Ga. 619 (1) (59 S. E. 270).
The facts in the present case show the following: In 1931 the Ingleside Methodist Church conveyed the lots which petitioners now own to the Junior Order, which deed showed Grand Avenue as a boundary. In 1946 the Ingleside Methodist Church purported to convey their interest in Grand Avenue to J. S. Farrar. The latter deed was inefective as a transfer of title to the middle of Grand Avenue opposite the lots in question, as the deed made in 1931 by the Methodist Church to the Junior Order transferred title to the middle of Grand Avenue opposite said lots. In other words, the Methodist Church had already conveyed all its interest to the middle of Grand Avenue opposite said lots by its deed in 1931, and in 1946 had no interest to convey. In fact, the heirs of the Dabneys, when they attempted to convey by deed in 1926 to the Methodist Church, Grand Avenue opposite said lots to convey, as said interest passed out of them when they sold the lots many years prior thereto.
Accordingly, where as here it appears that the defendants and their predecessors, though they had been in possession of the entire portion of Grand Avenue opposite their lots for more than 20 years, knew that their lots were bounded on that side by Grand Avenue as shown on the plat of the subdivision, and entered upon and held upon under no claim of right, they could never obtain a prescriptive title to the entire street. Mayor &c. of Forsyth v. Hooks, 182 Ga. 78 (184 S. E. 724).
Since the defendants acquired no title in Grand Avenue by prescription, they had no title to the whole of the street, but only to the center thereof, which they acquired by grant which went with the lots under their deeds, and they would not be
830 HANNAH v. KENNY. (210 Ga.)
entitled under the evidence to a permanent injunction against interference by the petitioners to the half of Grand Avenue to which they had no title.
Whether the valuable inrprovements made by the defendants in Grand Avenue were located on the haIf to which they hold title, or whether on that haIf to which the petitioners hold title is not shown by the evidence. In the absence of such proof, this court will not rule upon whether the petitioners have been guilty of such lack of diligence in sitting by and permitting the defendants to make valuable improvements upon said street, to which they had no title, as would deny them equitable relief. See Head v. Crouch, 207 Ga. 648 (63 S. E. 2d 647).
The verdict and the judgment, decreeing title in the defendants by prescription and permanently enjoining the petitioners from interference with that half of the street now owned by the defendants, is in error.
It follows that the trial court erred in denying the petitioners' amended motion for new trial and in entering the final decree.
Judgment reversed. All the Justices concur.
E. T. Hendon, Jr., contra.
J. H. Kennerly, for plaintiffs in error.
ARGUED JUNE 16, 1954 -- DECIDED JULY 13, 1954 -- REHEARING DENIED JULY 27, 1954.
Saturday May 23 03:38 EDT

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