Opinion
19243.
ARGUED FEBRUARY 13, 1956.
DECIDED MARCH 12, 1956.
Declaratory judgment. Before Judge Renfroe. Screven Superior Court. November 22, 1955.
L. H. Hilton, Hilton Hilton, for plaintiff in error.
W. C. Hawkins, contra.
If, as contended by the plaintiff, the deeds by his predecessors in title to the railway company did not convey title, but conveyed only a right-of-way or easement for railroad purposes to the 200-foot strip of land therein described, and such right-of-way has, upon its abandonment by the railway company, reverted to him as successor in title to the railway company's grantors, he has an adequate remedy at law by action in ejectment to recover the land conveyed by the railway company to the defendant Willis; whereas, if the conveyances by the plaintiff's predecessors in title conveyed fee-simple title to the railway company to the land involved, the defendant grantee of the railway company would be entitled to prevail, but the present petition, while praying for process, contains no prayer that the plaintiff recover the property, or that title thereto be decreed in him. The plaintiff's petition, therefore, fails to show or allege that he is without an adequate remedy at law or in equity, and shows that whatever rights the parties may have are accrued already, and no facts or circumstances are alleged to show any necessity for a determination of any dispute 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 right, and which future action without such direction might reasonably jeopardize his interest. Accordingly, the trial judge properly sustained the defendant's general demurrer to the petition, since it sets forth no ground for a declaration of rights under the Declaratory Judgment Act. Sumner v. Davis, 211 Ga. 702 ( 88 S.E.2d 392); Lewis v. Lewis, 212 Ga. 168; Brown v. Cobb County, 212 Ga. 172.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., not participating.
ARGUED FEBRUARY 13, 1956 — DECIDED MARCH 12, 1956.
The petition was originally brought against Sylvania Central Railway Company and L. D. Willis, as defendants, Sylvania Central Railway Company having been subsequently dismissed as a party defendant. As finally amended, the petition alleged that in 1884 certain named parties conveyed to Sylvania Railroad Company, of which the Sylvania Central Railway Company is successor in title, certain described easements or rights-of-way over and through described property of the grantors; that, under authority of the Interstate Commerce Commission, the railway company has ceased to operate, and has abandoned the railroad and removed its tracks and crossties from said rights-of-way; and that the plaintiff is successor in title to the original grantors of the rights-of-way to the railway company, and that title to said rights-of-way has reverted to the plaintiff, subject to a life estate in a named person; that the railway company has, since such abandonment, executed a deed to the defendant L. D. Willis to a certain portion of the right-of-way conveyed to it by the plaintiff's predecessors in title, but, without alleging that this defendant is now or has been in possession of the property, alleging that this defendant claims "some right, title and interest in and to the property" claimed by the plaintiff, and that said claim constitutes a cloud upon the plaintiff's title to said property, and that by reason thereof the plaintiff cannot with safety and security sell any part of the land which was formerly used by the railway company as an easement for right-of-way purposes or any of the buildings or other improvements located thereon with a covenant of general warranty, although he has had several opportunities so to do and would like to do so, subject to the life estate in said property.
He prays for process and service upon the defendant; "That this court take jurisdiction of the controversy between the parties hereto and declare the rights, status and other legal relations of the parties with respect to the strip of land 200 ft. in width formerly held by Sylvania Central Railway Company and its predecessor in title, the Sylvania Railroad Company, as described in plaintiff's petition," and for general relief.
To this petition the defendant Willis demurred upon the ground "That said petition sets forth no ground for a declaration of rights under the Declaratory Judgment Act," Code (Ann. Supp.) Chapter 110-11. To the judgment sustaining this demurrer the plaintiff excepts.