Opinion
16351.
OCTOBER 11, 1948. REHEARING DENIED NOVEMBER 18, 1948.
Injunction. Before Judge Sloan. Hall Superior Court. June 1, 1948.
Dunlap Dunlap and William P. Whelchel, for plaintiff in error.
Perry S. Oliver and Johnson Johnson, contra.
1. Equity will enjoin a continuous trespass.
2. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable. If the deed furnishes a key by which the property conveyed can be identified, it is sufficient.
3. Where the descriptive averments contained in a deed are sufficient to furnish a key whereby the land which the grantor intended to convey may be ascertained, parol evidence which does not add to, enlarge, or in any way change the description is admissible for the purpose of identifying the conveyed land.
4. Where a new trial is granted, and on another trial it is not likely that the evidence will be the same, it is not necessary for this court to pass upon the general grounds of a motion for new trial or a special ground complaining because of a directed verdict.
No. 16351. OCTOBER 11, 1948. REHEARING DENIED NOVEMBER 18, 1948.
R. I. Tyner and Bob Chambers filed a suit in the Superior Court of Hall County against Gainesville Midland Railroad Company. Subsequently M. Griffin and S.C. Moon were made parties plaintiff. The petition alleged that the plaintiffs owned a described tract of land in Hall County upon which the defendant had entered and was continually committing wilful acts of trespass. An injunction and general relief were prayed. Griffin and Moon responded to the petition and in substance said: They, as sole, absolute, and exclusive owners, conveyed the land in dispute to the plaintiffs, Tyner and Chambers, on April 6, 1946. They and their predecessors in title had owned it for more than sixty-five years — their title being shown by duly executed and recorded warranty deeds; and they and their predecessors in title had been in the open, notorious, adverse, public, continuous, exclusive, uninterrupted, and peaceable possession of it, in good faith, and in their own right, for more than twenty years immediately prior to the date they conveyed it to the plaintiffs. They prayed that title be decreed in their grantees. The defendant demurrer generally to the petition and to the response by Griffin and Moon, as failing to state a cause of action either at law or in equity, and specially upon several grounds. The grounds of general demurrer were overruled, and to that judgment exceptions pendente lite were timely certified and filed. The answer denied that the plaintiffs owned the land, or that the respondents, Griffin and Moon, ever had any title to or possession of it. The answer further alleged that Henry Clark, by deed dated June 22, 1880, conveyed the land to Gainesville, Jefferson, and Southern Railroad Company, the defendant's predecessor in title, and that the defendant is now vested with absolute title thereto. On the trial, and after the evidence had closed, a verdict was directed and a decree was entered for the plaintiffs. Error is assigned on the pendente lite exceptions and the judgment overruling an amended motion for new trial.
1. There is no merit in the contention that the court erred in overruling the general demurrer. The allegations of the petition were sufficient not only to show a trespass, but a continuing one, on the plaintiffs' land, and this being true the case comes within the rule that equity will, by injunction, repress a continuous trespass. Wall v. Mercer, 119 Ga. 346 ( 46 S.E. 420); Martin v. Pattillo, 126 Ga. 436 ( 55 S.E. 240); Loudermilk v. Martin, 130 Ga. 525 ( 61 S.E. 122); Moore v. Daugherty, 146 Ga. 176 ( 91 S.E. 14); Durrence v. Groover, 160 Ga. 680, 682 ( 129 S.E. 29).
2. Ground six of the amended motion for new trial complains as to the refusal of the trial judge to admit in evidence a deed from Henry Clark to Gainesville, Jefferson Southern Railroad Company, upon which the defendant relied for title. That the deed was void for want of sufficient description to identify the land which the grantor intended to convey, was the only objection made to its introduction. The deed, captioned "State of Georgia, County of Hall," and dated June 22, 1880, contains the following description: "All the land contained within one hundred feet in width on each side of its track, or roadbed (measured from the center) of any portion of the lot of land hereinafter described through which said railroad may be constructed. The land hereby conveyed being my entire plantation consisting of various lots and parts of lots lying on the surveyed road or route with all of the privileges and immunities."
It is well settled by the decisions of this court that a deed is sufficient to pass title, and will not be declared void for uncertainty of description, if the descriptive averments contained therein are certain, or if they afford a key by which the land can be definitely located by the aid of extrinsic evidence. Swint v. Swint, 147 Ga. 467 (2) ( 94 S.E. 571); Price v. Gross, 148 Ga. 137 (2), 138 ( 96 S.E. 4); Prudential Insurance Co. v. Hill, 170 Ga. 600 (2) ( 153 S.E. 516); Blumberg v. Nathan, 190 Ga. 64 ( 8 S.E.2d 374); Deaton v. Swanson, 196 Ga. 833 ( 28 S.E.2d 126). "The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable. Andrews v. Murphy, 12 Ga. 431." Mull v. Allen, 202 Ga. 176, 179 ( 42 S.E.2d 360). It is earnestly insisted in the present case that the deed neither describes the property conveyed with certainty, nor furnishes a key whereby its identity may be ascertained by the aid of competent parol evidence. Obviously, the first is true, but to the latter we do not agree. From the caption of the deed under attack it will be presumed that the land which the grantor intended to convey is located in Hall County, Georgia. Horton v. Murden, 117 Ga. 72 (3) ( 43 S.E. 786). From common knowledge and general public information it is judicially known that the roadbed and tracks of Gainesville Midland Railroad Company, successor to Gainesville, Jefferson Southern Railroad Company, begin at Gainesville, in Hall County, and run south in that county to the point where they enter Jackson County, Georgia. Watson v. Richmond Danville Railroad Co., 91 Ga. 222 (3) 226 ( 18 S.E. 306); Code, § 38-112. The deed in question expressly states that it was the grantor's intention to convey that right of way 100 feet in width on each side of its track or roadbed which had been surveyed by the grantee through the grantor's plantation. Applying this information as furnished by the deed as a key, the land conveyed thereby may be identified with required certainty by proof that the grantor Clark, at the time of this conveyance, had but one plantation in Hall County south of Gainesville, Georgia, through which Gainesville, Jefferson Southern Railroad Company had surveyed a right of way. Since the deed itself undoubtedly furnished a key for determining what land the grantor intended to convey, it was erroneous to exclude it from evidence on the objection made.
3. On motion the court ruled out of evidence the entire testimony of C. L. Newton (a witness for the defendant), who in substance testified: that the right of way of Gainesville Midland Railroad goes through land formerly known as the Henry Clark plantation; that the company had been using its right of way, without change, for sixty-five years by running its trains over it; that the place where Mr. Clark lived and died was known as the Henry Clark plantation; and that he never knew of any other Henry Clark plantation in Hall County. In view of our ruling in the preceding division, this testimony was relevant and material, and the court erred in excluding it.
4. Headnote 4 requires no elaboration.
Judgment reversed. All the Justices concur, except Bell, J., absent on account of illness.