Opinion
16846.
NOVEMBER 16, 1949.
Injunction. Before Judge Edmondson. Hall Superior Court. July 9, 1949.
W. Paul Carpenter and Kenyon, Kenyon Gunter, for plaintiff in error.
William P. Whelchel, and Dunlap Dunlap, contra.
The allegations of the petition, seeking to enjoin the defendant from occupying described land, and to enjoin him from allowing a building that had been previously erected from obstructing a new sidewalk which had been constructed on each side of said building, failed to set forth a cause of action, and the trial court erred in overruling the defendant's general grounds of demurrer.
No. 16846. NOVEMBER 16, 1949.
On February 26, 1949, the City of Gainesville filed in Hall Superior Court, against William J. Bush, a petition which alleged substantially the following: On September 11, 1946, the defendant entered into a lease agreement with First National Bank of Gainesville (hereinafter referred to as the bank), which agreement covered the land in question and provided in part: "The term of this lease is for a period of twelve months from the 15th day of September, 1946, provided, however, that the lessor will have the right to terminate said lease at any time by giving the lessee thirty days' notice in writing. The lessee shall have the right to construct a building on said land for operating a business of selling food for human consumption, including lunches and drinks. The lessee agrees to remove the building placed thereon at the expiration of this lease if requested so to do by the lessor and reserves the right to remove it whether requested so to do or not." The bank acquired the property referred to in the lease by deed from F. W. Jackson and Mrs. W. B. McWhorter, dated March 30, 1946, which deed contained a clause: "The grantee and its assigns are bound by a covenant contained in a deed from Mrs. Nellie F. Brown et al., to grantors herein dated March 29, 1941, and recorded in office of the Clerk of the Superior Court of Hall County, . . to convey to the City of Gainesville a strip of land fifteen (15) feet and four (4) inches from the inside of the sidewalk adjacent to East Washington Street and in accordance with the covenants hereto referred to." Petitioner acquired from the bank a deed dated September 23, 1948, conveying 15 feet and 4 inches. of the property conveyed by F. W. Jackson and Mrs. W. B. McWhorter to the bank, running from Green Street along East Washington Street of uniform width of 15 feet and 4 inches. On November 2, 1948, petitioner served upon the defendant a notice in writing that at the expiration of 30 days it would proceed to widen East Washington Street under the terms of the deed conveying title to it by the bank. On November 3, 1948, the bank gave the defendant notice in writing that his lease would be canceled as of December 5, 1948. The defendant constructed the present building, now occupied by him on said property, upon the distinct understanding that he would have to vacate said property after 30 days' notice in writing from the bank, and he understood that said building could not permanently remain on said lot. The deed from F. W. Jackson and Mrs. W. B. McWhorter to the bank, dated March 30, 1946, was duly recorded in the office of the Clerk of the Superior Court of Hall County at the time the defendant entered into the lease agreement with the bank. The defendant at the time he constructed his building on said lot had both constructive and actual notice of the conditions contained in the deed from F. W. Jackson and Mrs. W. B. McWhorter to the bank. On February 8, 1949, both the petitioner and the bank in writing demanded immediate possession of the land on which the building is located, and the defendant has refused to vacate the land or to surrender possession to the petitioner to that part of the land occupied by him, conveyed by the bank to the petitioner. Within the last few years the population of Gainesville and the volume of business transacted has approximately doubled, and the amount of traffic at the intersection of Green Street and East Washington Street is such that, in order to adequately facilitate the travel at that point, there was a need for the widening of said street, and in the exercise of the power vested in the petitioner as a municipality, it determined to widen East Washington Street and to that end secured said deed from the bank. In the further exercise of the power vested in the petitioner as a municipal corporation, it has graded and paved an additional space fronting the lot acquired by the bank, as aforesaid, for the purpose of widening the street and building a new sidewalk, a width of 23 feet from the outside of the old curbstone, marking the north side of East Washington Street, and it has paved both the street and the sidewalk with the exception of the space now occupied by the building occupied by the defendant, and known as "Bill's Grill." To allow the building to remain there, would create a public nuisance, endangering the life of citizens and the traveling public using East Washington Street because the building juts out entirely across the sidewalk and adjoins the street, thus projecting itself entirely across the sidewalk. Green Street and East Washington Street have a very heavy traffic going in both directions by both motor vehicles and horse-drawn wagons and by pedestrians. If said building is permitted to remain across the sidewalk, it creates a danger of having some person, rightfully traveling the sidewalk along East Washington Street, stepping off from the sidewalk into the street in order to get around said building and thereby being struck by some motor vehicle, rightfully using the street, and may render the petitioner liable in damages or at least exposed to litigation on account of its obligation to keep its streets and sidewalks in reasonably fair condition for use by the public. The petitioner has never entered into any contractual agreement of any kind with the defendant for the use of the property or any part thereof, and he has never been a tenant of any kind under the petitioner. The defendant is a trespasser upon the property, and while he remains in possession and occupies the space appropriated by the petitioner for sidewalk purposes, each day constitutes a new and fresh trespass and a continuing nuisance. Under the terms of the lease between the defendant and the bank, he had a right to remove his building from said property at any time, but the defendant has failed and refused to remove said building and the same constitutes a nuisance; and in order to avoid a multiplicity of suits, it is necessary that a court of equity intervene and grant to the petitioner the relief to which it is entitled. The defendant is insolvent and the petitioner is without a complete and adequate remedy at law. The prayers, besides for process and rule nisi, were: (1) "that the defendant be in fact restrained and enjoined from continuing to occupy the land acquired by petitioner from the [bank], or to allow any obstruction by a building or in any other way or manner to remain over the space acquired by petitioner as aforesaid or to in any way block the sidewalk going from Green Street along East Washington Street toward Brenau College"; (2) "that, upon a final hearing, said defendant be perpetually restrained and enjoined from occupying said land or any part thereof or by allowing any building or anything else belonging to him to in any way obstruct the sidewalk, and have such other and further relief as in equity it might be entitled under the facts herein alleged and as they may be developed by evidence at any hearing or upon final trial."
A demurrer, on general and special grounds, was interposed to the petition. The court overruled all of such grounds. To this ruling the defendant excepted pendente lite, and assigned error thereon in his bill of exceptions.
The defendant also filed his plea and answer and an amendment thereto. The plaintiff filed a demurrer to a part of said plea and answer as amended, which demurrer was sustained by the court, and to which ruling there was no exception.
Upon the close of the evidence, the court directed a verdict for the plaintiff, and a judgment was duly entered thereon. The defendant's amended motion for a new trial was overruled, and the case comes to this court for review upon his exceptions to that judgment.
The defendant demurred on the grounds: (1) The petition sets forth no cause of action; (2) it sets forth no sufficient legal or equitable grounds for the relief sought; (3) the petition shows on its face, (a) that the sole object thereof is to seek a mandatory injunction, (b) that it is purely and solely an effort on the part of the plaintiff to evict the defendant from the possession of land the right to which is in dispute between the defendant and another party, (c) that the plaintiff has an adequate remedy at law, (d) that there is a nonjoinder of parties, in that the bank is acting in concert with the city in trying to evict the defendant, and therefore the bank is a necessary party; (4) that specified allegations as to a nuisance should be stricken, because the plaintiff has an adequate remedy at law for the abatement of any alleged nuisance.
"An injunction is not available for the purpose of accomplishing an eviction, or to prevent interference with realty by one already in possession; and where an order granting an interlocutory injunction has this effect, the same will be set aside on proper exception to this court." Cannon v. Montgomery, 184 Ga. 588 (3) ( 192 S.E. 206). In Braswell v. Palmer, 191 Ga. 262 (4) ( 11 S.E.2d 889), this court held: "A mandatory injunction is not permissible in this State. The court erred in granting an interlocutory injunction the effect of which, by its general terms as well as its express language, restrained the defendants `from remaining on said premises and from keeping his [their] goods on said premises, until further order of the court.'" It was said in the opinion: "Exception is taken to the interlocutory injunction, on the ground that it is essentially mandatory. Our Code, § 55-110, provides that `An injunction may only restrain; it may not compel a party to perform an act.' In Goodrich v. Georgia Railroad c. Co., 115 Ga. 340, 344 ( 41 S.E. 659). the court in construing this section said: `Under our Code injunction can be used only to restrain. It does not necessarily follow, however, because injunction can be used only for this purpose, that it can not be used when the effect of yielding obedience thereto would incidentally require the performance of some act, if the main purpose of the injunction is to restrain the doing of some wrongful act. It seems to us that the true meaning of the section above quoted is, that the court can not issue a purely mandatory order, but that the court can grant an injunction the essential nature of which is to restrain, although in yielding obedience to the restraint the defendant may be incidentally required to perform some act.' While this construction militates against the literal universality of the words of the Code section, it was pointed out in the Goodrich case that in cases involving disputes as to the right to possession of land an injunction the effect of which would be to put the defendant out of and the plaintiff in possession would be mandatory, citing. . . Of course the possession referred to in the cases just cited means possession by occupancy, and does not refer to acts which injure the property or the use of it or intrude upon another's physical occupancy, but do not go to the extent of physical occupancy." In Hapeville-Block Inc. v. Walker, 204 Ga. 462 ( 50 S.E.2d 9), it was held: "Where, as in this case, the sole relief sought is the grant of an injunction mandatory in its nature, it is not error to sustain a general demurrer to the petition." Again in Fender v. Hendley, 195 Ga. 498 (1) ( 24 S.E.2d 654), it was held: "There being no allegation in the petition that the plaintiff is in possession of the land, but on the contrary the petition containing an averment that the defendant therein fails and refuses to yield possession to plaintiff, who is alleged to be the owner thereof, it was erroneous to enjoin the defendant from in any manner interfering with the possession of the plaintiff in and to the land in question, for the reason that the injunctive order was mandatory in its nature, and not within the proper scope of the writ of injunction."
The only allegation of trespass with which the defendant is charged consisted in remaining in possession and occupying the space appropriated by the plaintiff for sidewalk purposes. No other act of intrusion by the defendant against the plaintiff was alleged. Under the above mentioned decisions, physical occupancy cannot be enjoined, but acts which injure property, the use of it, or intrude upon another's physical occupancy can be enjoined. The allegations in the present petition are that the defendant has had and now has physical occupancy of the premises in question, and that the plaintiff has not had and does not now have physical occupancy. Therefore it follows that the defendant could not have committed any act intruding upon the plaintiff's occupancy, which is subject to being enjoined. A different question would arise if the defendant had placed a building on a sidewalk already occupied and maintained by the plaintiff, because such obstruction would be an invasion of and intrusion upon property already occupied by plaintiff. But here the defendant and his building have occupied the premises for a number of years, and the plaintiff has never had possession of the premises. The petition alleges that the plaintiff widened the street and paved a sidewalk on the premises "with the exception of the space now occupied by the building occupied by the defendant." Obviously, where a plaintiff widens a street and in so doing constructs a sidewalk up to a building, and then seeks an injunction to restrain the blocking of said newly constructed sidewalk by the building, such injunction would have as its only purpose the eviction of the defendant and removal of the building so the sidewalk could be completed, and would therefore be a mandatory injunction.
In the cases relied on by the city to sustain its position against the defendant's demurrer, the plaintiff's possession or his right of enjoyment of an easement had been intruded upon by the defendant, and the main purpose of the injunction sought was to enjoin such intrusion. In such cases the trial court could enjoin the intrusion and in so doing could incidentally require the removal of a fence or other obstacle. The facts of those cases differ from the allegations in the petition in the instant case, where the only act of trespass charged was the defendant's physical possession, which cannot be enjoined.
The allegations of the petition failed to state a cause of action for the injunctive relief sought, and the trial court erred in overruling the defendant's general grounds of demurrer. All further proceedings were nugatory.
Judgment reversed. All the Justices concur.