67 S.E.2d 145


33515.Court of Appeals of Georgia.

1. The plea to the jurisdiction of the trial court was without merit.

2. The trial court did not err in overruling the demurrers, both general and special, to the petition.

3. The evidence authorized the verdict.

Certiorari; from DeKalb Superior Court — Judge Vaughn. January 23, 1951.

F. H. Cheek filed a petition before two Justices of the Peace of DeKalb County, Georgia, to abate a private nuisance under the provisions of the Code, § 72-201, et seq. He alleged: that he was the owner of certain described land on Hillcrest Avenue in DeKalb County, known as lots numbers 96, 97, 98, 99, 100, and 101, as per a plat of Decatur Terrace Subdivision recorded in Plat Book 3, page 207, in the office of the Clerk of the Superior Court; that said property of the plaintiff, as described by the deeds thereto and shown by the plat referred to, was bounded on the east by an alley 8 feet wide; that the defendant B. G. Barnes, had blockaded and obstructed the said alley at the entrance thereof by the erection of a fence on the south side of Hillyer Street and by piling lumber in the alley; that the plaintiff had requested the defendant to abate said nuisance and remove said obstruction, but that Barnes had refused to do so; that the plaintiff has been especially damaged since the value of his property has been diminished because of the said nuisance and because he is unable to traverse the said alley.

The defendant filed an answer, denying that he had created any nuisance or that he had erected the fence complained of, but admitting that the lumber piled in the alley belonged to him, and alleging: that he had owned the property at the location for 22 years; that, when he bought the same, he was informed that an eight-foot alley in the rear of said property had been abandoned and that he could make whatever use he desired

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of one-half of it; that he had done this for the past 22 years; that other persons owning property abutting the alley, including the plaintiff, have also considered the alley abandoned, and have done certain acts amounting to the exercise of dominion over the said alley. The defendant demurred to the petition generally and specially, on the grounds that the description of the property involved was so vague and indefinite as not to put the defendant upon notice as to the location of the nuisance; that the plaintiff has failed to set out the location of the alley allegedly blocked or the manner in which it was blockaded or obstructed; that the petition fails to state how or in what respect the blocking of said alley was a nuisance to other property owners in the subdivision other than the plaintiff; that the petition fails to state in what manner the plaintiff has been damaged or to what extent; and on the ground that he fails to allege when and by what authority the said alley was opened. The defendant also filed a plea to the jurisdiction of the trial court, on the ground that the defendant claims title to the land upon which the fence had been erected, namely half of the alley which abuts on his property, and that the court was without authority to try issues involving title to land.

The trial court overruled the defendant’s demurrers and the plea to the jurisdiction, heard the case, and upon the verdict of the 12-man jury in favor of the plaintiff entered an order that the nuisance be abated. To this order the defendant excepted and filed his petition for certiorari to the superior court, complaining of the order overruling the demurrers and the plea to the jurisdiction and of the verdict and judgment of the court on the three general grounds, and on the ground that the plaintiff failed to adduce any evidence to show that the defendant erected the nuisance complained of or was in any way responsible therefor. The superior court sanctioned the writ, the trial court made its reply, and after argument the certiorari was dismissed. To this order the defendant excepted.

J. E. B. Stewart, for plaintiff in error.

W. E. Zachary, contra.


1. Where the owner of property has it surveyed, marked off and subdivided into streets, lots, and alleys, has a plat drawn showing the location of such streets, lots, and

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alleys, records the plat, and thereafter sells the lots to various purchasers, giving deeds thereto which refer to the plat and, in describing the location of the lots sold, refer to the streets and alleys shown on the plat as part of the boundaries thereof, the purchasers acquire a perpetual and indefeasible easement over such streets and alleys as a means of ingress and egress to their lots, which cannot be forfeited or abandoned by a mere non-user or failure for a long period of time to open and improve such streets or alleys; and this is true whether such streets and alleys are ever formally dedicated or accepted by public authority as public streets or alleys or not. “Their right to it being perfect and complete, they could not be deprived of it except by express abandonment, or by such conduct on their part as would be tantamount to the same.” Ford v. Harris, 95 Ga. 97, 101 (22 S.E. 144); Hamil v. Pone, 160 Ga. 774
(129 S.E. 94); Aspinwall v. Enterprise Development Co., 165 Ga. 83 (140 S.E. 67); Holder v. Jordan Realty Co., 170 Ga. 764 (1b) (154 S.E. 353); Westbrook v. Comer, 197 Ga. 433
(1, 3, 5) (29 S.E.2d 574).

Chapter 72-2 of the Code of 1933 provides for the manner of abatement of nuisances by a justice court as therein stated. This procedure has been held to be the proper remedy where the sole relief sought by the plaintiff is the removal of obstructions in a public alley or street placed there by the defendant. Haney
v. Sheppard, 207 Ga. 158 (60 S.E.2d 453). The character of the proceeding here was established by the petition and its contents, and this could not be changed into an action to try title to land by the defense sought to be interposed by the defendant. The exception to the overruling of the plea to the jurisdiction was without merit.

2. The demurrer as to the description of the property was based on the original petition as drawn, which — apparently due to a typographical error — omitted a part of the description of the plaintiff’s property. The plaintiff, before the hearing on the demurrer, amended his petition, substituting a complete description of the property involved, and as such it was sufficient to completely identify and locate the property, under the ruling in Holder v. Jordan Realty Co., 170 Ga. 764 (1a) (supra), and similar rulings. The description in the petition

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of the obstruction in the alley as consisting of a wooden fence erected at the entrance of the said alley on the south side of Hillyer Street, and lumber piled therein, was sufficient to locate and describe the obstruction and to locate the alley.

This being an action by the plaintiff to have a private nuisance abated, and no provision being made in the law establishing the proceeding for the award of money damages to the plaintiff, and none being sought in the action, it was unnecessary for the plaintiff to allege how or wherein he was damaged or to what extent; nor was it necessary or proper for him to allege how such obstruction was a nuisance to other landowners in the vicinity, such matters being immaterial to his right to have the nuisance abated. Under the rulings in the cases cited in the first division of this opinion, supra, the petition sufficiently showed a cause of action in the plaintiff, where it alleged ownership of the property, that it abutted the alley and was conveyed by reference thereto, and that an obstruction of the plaintiff’s right to use the alley had been erected by the defendant. These grounds of demurrer were without merit, and the trial court did not err in overruling the demurrers.

3. While there was some conflict in the evidence adduced upon the trial, the jury were authorized to find that the fence, constituting a part of the obstruction, either with the defendant’s consent or direction, was erected by his 20-year old son who lived with him in his home, that the defendant claimed the right to take possession of one-half of the alley involved and thus enclosed by the fence, and stacked on the land constituting a part of the alley lumber which was admittedly the property of the defendant, and which constituted the other part of the obstruction complained of. The evidence further showed that the plaintiff had purchased his lot some twenty years prior to the time of the trial, under circumstances substantially as alleged in the petition. Under the rulings in the cases cited in the first division of this opinion, the evidence was sufficient to show the right of the plaintiff to an easement over the land originally platted as an alley, and the wrongful obstruction of that easement by the defendant. This was sufficient to authorize the court to grant the relief prayed.

The superior court did not err in dismissing the certiorari.

Judgment affirmed. Sutton, C.J., and Felton, J., concur.

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