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Injunction. Before Judge Carpenter. Morgan Superior Court. February 6, 1954.
HEAD, Justice.
The petition failed to state a cause of action for any relief, and the trial court erred in overruling the general demurrers.
C. L. Alford filed a petition against G. H. Overton, and, as amended, the petition alleged: The defendant is a resident of Morgan County and is the owner and in possession of a tract of land lying in the Kingston District of the county. The petitioner is the owner and in possession of a tract of land in the same district, which lies near the tract belonging to the defendant. There is a public road about .4 mile in length along and through the lands of the defendant and to the lands of the petitioner. The road is now, and has been for more than 21 years, a public road, and is an established and authorized school-bus route. Paragraphs 5, 6, 7, and 8 are as follows:
"Petitioner alleges on information and belief that defendant is now engaged in and in the process of building and constructing, or causing the same to be done, an obstruction across said public road hereinabove describcd with the intent and purpose of blocking said road, and of altering said road, and of interfering with the full and free use of said road; and said obstruction, if allowed to commence and remain will prevent or hinder or interfere with petitioner's access to said O'Bear tract of land, with petitioner's use and enjoyment of the same, with said school-bus route, and with the rights of the public in and to the use of said road; unless prevented or restrained said obstruction will be and constitute a permanent and continuing nuisance, and, to a reasonable degree certain, will damage irreparably this petitioner. That defendant has constructed, or caused to be constructed at the point where said mentioned road connects with the Buckhead-Parks Mill Ferry Road right opposite defendant's dwelling portions of fence in the nature of wings that run out into the right-of-way of said road from each side thereof, leaving only a relatively narrow opening between two posts, which opening is so narrow that the larger vehicles, such as trucks and school buses can not pass through without great danger of damage done to them by contact with the posts on each side, and this is particularly so in wet weather when the roads are muddy. Plaintiff alleges on information and belief that it was and is defendant's purpose and intention, if not prevented from doing so by legal means, to erect a gate, cattle gap, cattle crossing, or some other similar obstruction between the posts and connecting the fence-wings above mentioned, in such manner to block effectively the full and free use of said road.
"6. That petitioner has tried by amicable and friendly means to dissuade defendant from erecting or causing to be erected said obstruction on and across said public road, but to no avail.
"7. That petitioner has no adequate remedy at law in the premises and therefore resorts to equity in this manner.
"8. That the obstruction erected, or caused to be erected, by defendant as described in paragraph 5 hereinabove, as it now stands, and most certainly if allowed to be completed, will constitute a permanent nuisance, continuing from day to day, and, to a reasonably degree certain will damage irreparably this petitioner, and has already damaged this petitioner specially in a manner not participated in by the general public, and will continue to so specially damage petitioner in the future, unless said obstruction is prevented from being completed and the parts now erected removed, and in support of this allegation plaintiff says as follows:
"a. Said mentioned obstruction as it now stands and as it would stand if completed materially affects the value of plaintiff's property hereinabove referred to as the O'Bear Place, materially lowering the value thereof.
"b. That said mentioned road is the only way of access that plaintiff has in, to and from his home on the said O'Bear property, and said mentioned obstruction peculiarly and specially damages plaintiff, and will continue to damage plaintiff from day to day unless removed, for this reason.
"c. That defendant's cows, while they are being pastured in the fields along said mentioned road frequently wonder [wander?] about said road right-of-way and lie down in it, making it necessary for plaintiff to nudge them out of the way in order to pass, thus specially damaging plaintiff."
The petitioner prayed for process, that the defendant be restrained and enjoined "from erecting, or causing to be erected, any device of any kind obstructing or tending to obstruct or block, wholly or partiall, said public road, or to interfere in any way that the defendant be required to remove any obstruction he may have put or caused to be put in the road; and that the defendant be temporarily and permanently enjoined "from allowing his cows and other livestock to wonder [wander?] in and lie in the road which is the subject matter of this petition."
The defendant's renewed general demurrers to the petition as amended were overruled, and his special demurrers were sustained in part and overruled in part. He filed exceptions pendente lite to the order overruling his demurrers. The jury returned a verdict for the petitioner. The defendant's motion for new trial, as amended, was denied. The defendant excepts to the judgment denying his motion for new trial and to the rulings on the demurrers. The parties will be referred to in the opinion as they appeared in the trial court.
The petition of the plaintiff shall plainly, fully, and distinctly set forth has cause of action for either legal or equitable relief, or both. Code 81-101.
" 'It is "one of the fundamental rules of pleading that facts and not legal conclusions must be alleged," and that mere general conclusions without specific facts on which they are based will constitute no cause of action. [Authorities].' It is the facts alleged, not the conclusions, that determine whether or not a cause of action is stated." Forrester v. Edwards, 192 Ga. 529, 534 (15 S. E. 2d 851), and cases cited; Fowler v. Southern Airlines, 192 Ga. 845 (4) (16 S. E. 2d 897).
"An injunction which is a harsh remedy should not be granted until a clear prima facie case is made by the bill. The allegations must be direct and positive." Jones v. Macon & Brunswick R. Co., 39 Ga. 138; Lee v. Clark, 49 Ga. 81, 84; William Hone & Co. v. Moody, 59 Ga. 731, 732. The allegations of fact may be on "information and belief," provided the allegations are direct and positive. Nance v. Daniel, 183 Ga. 538, 543 (189 S. E. 21); Bailey v. B. F. Coggins Granite & Marble Industries, 192 Ga. 72, 74 (14 S. E. 2d 568); Allen v. Allen, 196 Ga. 736, 747 (27 S. E. 2d 679).
In the present case there are no positive allegations of any fact that would entitle the petitioner to relief by injunction. The allegation that "said obstruction, if allowed to commence and remain, will prevent or hinder or interfere with petitioner's access to said O'Bear tract of land," is uncertain and contradictory within itself, and is further contradicted by other allegations which show nothing more than an encroachment on a public road (see Code 95-108, 95-9901, and 95-9902), assuming that the road described may be a public road. To permanently block a public road is a nuisance relievable in equity, while to hinder or interfere with the free use of a road may or may not be a nuisance, depending on the extent of the hindrance or interference.
Applying the rule that a petition couched in alternative expressions will, on demurrer, be given that construction most unfavorable to the pleader, the petition failed to state a cause of action. Stripped of all conclusions, it contained no positive allegations of fact that would entitle the petitioner to any equitable relief.
The court erred in overruling the general demurrers to the petition as amended, and the further proceedings were nugatory.
DUCKWORTH, Chief Justice, dissenting. The allegations are sufficient to show to a reasonable certainty an intention to block the alleged public highway which is being used as a school-bus route, and it is not necessary to wait until the blockage is placed in the road before the petitioner moves to protect himself against the alleged injury. Therefore, the court did not err in holding that the petition was sufficient to allege a cause of action, and did not err in overruling the general demurrer to the petition. The evidence proved the material allegations, and it was not error to deny the motion for new trial. I am authorized to state that Mr. Justice Candler and Mr. Justice Hawkins concur in this dissent as to the ruling on demurrer.
Kay Tipton, Erwin, Nix, Birchmore & Epting, Tipton & Tipton, contra.
Weldon C. Boyd, Fred A. Gillen, for plaintiff in error.
Saturday May 23 03:45 EDT

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