Opinion
13307.
JUNE 13, 1940.
Equitable petition. Before Judge McLaughlin. Muscogee superior court. February 19, 1940.
Swift, Pease, Davidson Swinson, and W. M. Page, for plaintiff in error.
Ed. Wohlwender and Ernest C. Britton, contra.
1. While the rule is well established in this State that the cutting of timber may be enjoined, though the defendant be solvent, where there are frequent acts of trespass, accompanied with threats to continue, or the circumstances indicate that the trespasses will recur from day to day ( Kimbrell v. Thomas, 139 Ga. 146, 76 S.E. 1024, and cit.; Moore v. Dougherty, 146 Ga. 176 (2), 179, 91 S.E. 14; Couey v. Talalah Estates Cor., 183 Ga. 442, 445, 188 S.E. 822, and cit.; Kirkland v. Odum, 156 Ga. 131, 135, 118 S.E. 706; Elliott v. Adams, 173 Ga. 312 (7), 323, 160 S.E. 336; Code, § 55-104), yet a mere apprehension of injury will not be sufficient to authorize the issuance of an injunction, "where no facts are alleged to show that the apprehended injury would be irreparable in damages." Carrington v. Citizens Bank of Waynesboro, 140 Ga. 798 ( 80 S.E. 12); Bailey v. Ross, 68 Ga. 735 (5); McCaskill v. Bower, 126 Ga. 341 (2), 343 ( 54 S.E. 942). In so far as the petitioners sought to enjoin the defendant from cultivating, selling, or cutting timber on the tract in question, it alleged merely that the defendant had gone on the land and erected a fence by permission of the plaintiffs, and had since denied the plaintiffs a right to use the land cut off by the fence. It stated merely an apprehension of the acts the plaintiffs sought to enjoin, without any averment that the defendant had done or even threatened to do such acts, or that the defendant was insolvent, or that any fact existed showing irreparable damage. Therefore, as to such averments and prayers, the petition stated no cause of action.
2. As to the remaining prayers that the defendant be enjoined from interfering with the plaintiffs in the possession of the disputed part of the land, the possession and control of which was alleged to be in the defendant, the petition showed no ground for equitable relief, and the existence of an adequate remedy at law: (a) Because "a court of equity will not ordinarily entertain a bill solely for the purpose of establishing the title of a party to real estate, or for the recovery of possession thereof, as these objects can generally be accomplished by an action of ejectment at law." Collier v. Garner, 177 Ga. 467 (3) ( 170 S.E. 352); Code, § 37-120; 10 R. C. L. 347. The rulings here made are without prejudice to any right of the plaintiffs to proceed at law. (b) Because "an interlocutory injunction, which, if enforced, would result in the dispossession of the defendant and the admission of the plaintiff into possession of the premises in controversy, is in legal effect a mandatory injunction, and the relief afforded by this injunctive order is not, under our law, within the proper scope of the writ of injunction." Smith v. Wood, 186 Ga. 214 ( 197 S.E. 246), and cit.; Cannon v. Montgomery, 184 Ga. 588 (3), 593 ( 192 S.E. 206), and cit.; Wheeler v. Layman Foundation, 188 Ga. 267, 271 (7), 272 ( 3 S.E.2d 645); Beck v. Kah, 163 Ga. 365, 368 ( 136 S.E. 160); Code, § 55-110.
3. Under the preceding rulings, and irrespective of other questions raised by the demurrers to the petition, it was error to overrule the general demurrer.
Judgment reversed. All the Justices concur.
No. 13307. JUNE 13, 1940.
The members of a church filed a petition for injunction, alleging that they held title by adverse possession for church purposes for more than twenty years of a five-acre tract of land containing a spring and pool. The land was described as: "5 acres, . . more or less, in the southeast corner of land lot No. 80 in the 8th district of Muscogee County, Georgia, . . for baptismal purposes a large spring and pool located on the northwest portion of said land . . on which plaintiffs' church is located, . . said 5 acres, more or less, having the east line of said lot and the south line of said lot for its eastern and southern boundary lines." It was alleged, that because of the location of a public road on the north side of the property, the absence of a fence to enclose the same, and the presence of the spring and large trees, people would drive automobiles on the grounds at night, throw bottles, and make disagreeable trash; and therefore, about five years ago, the plaintiffs "permitted defendant to run a temporary fence across that portion of same, so as to prevent these parties from using said spring and the woods," although it does not appear as to why the defendant desired to erect the fence; that the defendant had actual and constructive notice of plaintiffs' title and their "being in possession of said 5 acres," although he had previously, in 1931, received a deed conveying the entire land lot without excepting such tract; that "after granting defendant permission to put up [said] temporary fence . . for the purposes aforesaid, defendant now denies plaintiffs . . the right to go upon that portion of said 5 acres now cut off by [said] fence, and to use the spring and grounds for church purposes as aforesaid; thereby causing plaintiffs irreparable injury and damage;" that "should defendant, in his exercising ownership over that portion of said 5 acres now owned by [plaintiffs] which is now cut off by said fence, decide to cut the growing trees and cultivate or to sell said land, [it] would cause irreparable injury and damage to plaintiffs;" and that plaintiffs have no remedy at law. They pray that defendant be enjoined from interfering with plaintiffs in the possession, custody, or control of that part of the five acres which is now cut off by said fence; and from cutting any trees on, cultivating, or selling said part so cut off by said fence; that complete justice be determined between the parties; and that plaintiffs have such further equitable relief as may be meet and proper. The defendant excepted to the overruling of his demurrers. The general demurrer attacked the petition as insufficient in law and equity, as failing to show title, as showing too indefinite a description of the property to frame a decree, and on the ground that plaintiffs have an adequate remedy at law. Special grounds of demurrer attacked the petition as having no proper plaintiffs, and particular paragraphs as irrelevant and showing no threatened injury.