Opinion
18874.
ARGUED FEBRUARY 15, 1955.
DECIDED MARCH 14, 1955.
Petition for injunction. Before Judge Lilly. Echols Superior Court. November 29, 1954.
Franklin, Eberhardt Barham, for plaintiff in error.
J. Lundie Smith, B. Lamar Tillman, W. W. Rehberg, contra.
The trial court did not err in overruling the motion to dismiss and the special demurrers.
ARGUED FEBRUARY 15, 1955 — DECIDED MARCH 14, 1955.
Joe Rewis filed a petition against Bennie G. Bennett, and prayed that the defendant be temporarily and permanently enjoined and restrained from alleged acts of continuous trespass and the cutting of timber on the lands of the petitioner, described as a "tract or parcel of land situate, lying and being in parts of lots of land numbered 69, 70, 79 and 80 in the Thirteenth Land District of Echols County, Georgia, more particularly described as follows: 100 acres, more or less, in the south side of Lot of Land No. 69; . . ." (The lands in other lots were similarly described.)
The petition was filed on May 20, 1954. On September 13, 1954, the defendant made an oral motion to strike and dismiss the petition, upon the grounds that it failed to state a cause of action, legal or equitable, against the defendant; and failed to identify the lands alleged to be owned by the petitioner with sufficient definiteness to identify any land.
On September 17, 1954, and before any ruling on the oral motion to strike or dismiss, the petitioner amended by striking all of paragraph 1 of the petition, and inserting in lieu thereof an accurate description of lands alleged to be owned by the petitioner in land lot No. 69 of the Thirteenth Land District of Echols County. He amended paragraph 4 by striking any reference in that paragraph to land lot No. 70.
On September 24, 1954, the defendant filed a special demurrer to the allegations in paragraph 5 of the petition, that the petitioner acquired title by warranty deed from N. L. Bennett, dated November 4, 1948, on the ground that a copy of the deed was not attached to the petition; that the defendant acquired title by deed dated May 21, 1953, on the ground that a copy of the deed was not attached to the petition; and that the petitioner and the defendant have a common grantor in N. L. Bennett, on the ground that such allegation was a conclusion of the pleader.
On November 29, 1954, the trial judge overruled the renewed oral motion to strike or dismiss the petition, as amended, and the special demurrers of the defendant. The bill of exceptions assigns error on the order overruling the motion to dismiss and the special demurrers.
A petition to enjoin continuous trespasses on land, which fails to describe the land with a sufficient degree of certainty to establish the identity of the land claimed by the petitioner, is insufficient and may be dismissed on general demurrer. Laurens County Board of Education v. Stanley 187 Ga. 389 ( 200 S.E. 294); Bruce v. Strickland, 201 Ga. 526 ( 40 S.E.2d 386); Miller v. Stewart, 202 Ga. 127 ( 42 S.E.2d 445); Hamilton v. Evans, 208 Ga. 780, 781 (4) ( 69 S.E.2d 739). "When a petition is so defective that there can be no lawful recovery thereon, an oral motion to dismiss the case in the nature of a general demurrer may be made at any time before verdict." Kelly v. Strouse Bros., 116 Ga. 872 ( 43 S.E. 280); Darley v. Starr, 150 Ga. 88 ( 102 S.E. 819).
In the present case, the petitioner alleged that he is "the true and lawful owner" of the lands described in paragraph 1 of his petition. The description in paragraph 1, prior to amendment, was insufficient to locate the lands referred to therein.
The petitioner relied on ownership and on possession. A bare right of possession will authorize recovery of lands. Code §§ 105-1402, 105-1403; Whiddon v. Williams Lumber Co., 98 Ga. 700 ( 25 S.E. 770); Ault v. Meager, 112 Ga. 148 ( 37 S.E. 185); Fender v. Gardner, 153 Ga. 460 ( 112 S.E. 368); James v. Riley, 181 Ga. 454 (2) ( 182 S.E. 604). In paragraph 4 it is alleged that the defendant owns lands in two of the lots set out in paragraph 1, "lying north of a certain line between your petitioner and the defendant, which line is clearly located and established and `blazed' trees." Whether or not the allegations of the petition were sufficient to show that the defendant was in possession of land in named land lots north of an established and blazed line, and the petitioner in possession of lands in the same lots south of the line, need not be determined.
Generally, a petition may be amended at any time before a final order sustaining a general demurrer, or a motion to dismiss in the nature of a general demurrer. In the present case, the insufficient description of the land, in so far as it related to title, was cured by amendment. It appears that the description in the original petition and in the amendment both refer to land in lot 69 in the thirteenth land district of Echols County. "An insufficient description of the land sued for may be cured by amendment, where it appears that the description in the original petition and that in the amendment refer to the same land." Stringer v. Mitchell, 141 Ga. 403, 404 (2a) ( 81 S.E. 194); Luquire v. Lee, 121 Ga. 624 ( 49 S.E. 834); Martin v. Oakhurst Development Corp., 197 Ga. 288 (2), 294 ( 29 S.E.2d 179). The petition having been amended to describe accurately the lands upon which the petitioner claimed the defendant was trespassing and cutting timber, the motion to dismiss was properly overruled.
There was no reversible error in overruling the special demurrers of the defendant. "If a petition as originally filed be subject to a special demurrer, an amendment of the petition in other respects will not authorize the filing of such a special demurrer at the trial term." Wardlaw v. Southern Ry. Co., 199 Ga. 97, 99 (4a) ( 33 S.E.2d 304); Johns v. Nix, 196 Ga. 417 ( 26 S.E.2d 526); Cooper v. Mims, 204 Ga. 357 (2) ( 49 S.E.2d 824). If the special demurrers of the defendant came too late, as having been filed at the trial term, and attacking allegations of the petition which had not been amended, this would have authorized the court to dismiss the demurrers rather than to overrule them. But since the demurrers were not meritorious, it was not error to overrule them. This ruling in no wise conflicts with any ruling in Mayo v. Owen, 207 Ga. 641 ( 63 S.E.2d 649).
Judgment affirmed. All the Justices concur.