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Petition for declaratory judgment. Before Judge Perryman. Wilkes Superior Court. October 17, 1956.
Where, as here, the plaintiff has a clear and adequate remedy under existing law, pursual of which without direction of the court cannot be reasonably said to jeopardize its interest, no action for declaratory judgment is set out, and the general demurrer to the petition on this ground should have been sustained.
The City of Washington filed an action for declaratory judgment in the Superior Court of Wilkes County against Mr. and Mrs. Jackson Bright seeking to have determined the width of two city streets. The petition alleges in substance that the defendants' property is at the northeast corner of Court and Hill Streets; that the defendants are encroaching on the street right-of-way along the south and west sides of their property 3.5 to 5.2 feet along a sidewalk erected by them, and that the defendants are in process of erecting a five-foot wall along the edge of this sidewalk; that the property on which the wall is being erected is actually a part of Spring and Court Streets; that these are two of the original streets laid off in a plan of the Town of Washington as shown by a map in the minute book dated 1805; that since these streets were laid off in the original plat there have been in any changes of ownership of adjoining lots, and the original markers and monuments defining the boundaries of the streets have been destroyed, but the streets have been continuously used for traffic, and as originally laid off each was 33 feet in width.
Demurrers to the effect that the petition does not contain sufficient allegations to justify the grant of a declaratory judgment, that the plaintiff is not entitled to declaratory judgment as it has a clear and adequate remedy at law, and that no cause of action is set out were all overruled, and error is assigned on this judgment.
It is now well established that the declaratory judgment statute in this State does not take the place of existing remedies, and is not available where there exists a remedy, either in law or equity, unless there be some fact or circumstances which necessitate a determination of the dispute, not merely for the purpose of enforcing accrued rights, but "to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest." Sumner v. Davis, 211 Ga. 702 (1) (88 S. E. 2d 392); Savannah Theatres Co. v. First Federal Savings &c. Assn., 93 Ga. App. 487 (1) (92 S. E. 2d 217).
It is perfectly obvious in the present case that the plaintiff's right of action, if one exists, depends not upon the width of its street as an abstract matter, but upon title to the land upon which the defendants' wall is being erected. If this land belongs to the city as part of its public streets, then the defendants are trespassing upon the city's property and also are committing a nuisance by obstructing the streets. If title to the land does not belong to the municipality, but to the defendants, they have a right to erect the wall thereon. An action in ejectment is a proper legal method of trying title to land. Lopez v. Downing, 46 Ga. 120. A municipality may maintain an action in ejectment to recover possession of a street. Robins v. McGehee, 127 Ga. 431, 435 (56 S. E. 461); Powell, Actions for Land (rev. ed.) 65, p. 67 and citations; 64 C. J. S. 182, 1752, Ejectment. No interest of the plaintiff would be jeopardized by so proceeding, and if it is of the opinion, as contended, that to proceed on the nuisance theory is not adequate for its purposes, it has available this remedy also.
Since the plaintiff has a clear and adequate remedy under existing law, no cause of action for declaratory judgment is set out, and the trial court erred in overruling the general demurrers to the petition.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.
Clement E. Sutton, contra.
Colley & Orr, for plaintiffs in error.
Saturday May 23 01:38 EDT

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