Opinion
17192.
SEPTEMBER 11, 1950.
Injunction. Before Judge Paschall. Whitfield Superior Court. May 24, 1950.
Hardin McCamy, for plaintiff in error.
Mitchell Mitchell, contra.
1. A blueprint of a plat of an unofficial survey is admissible in evidence when proved to be correct by one who supervised the making of the survey and the blueprint.
2. Where a deed refers to a recorded plat of a subdivision for a description of the lots conveyed, the plat can not be said to be too indefinite to identify the property when it is designated by name in a certain land lot of a county, and, although it does not designate the location of the land-lot lines, this would not render it indefinite since the lines would add nothing material to the plat.
3. The charge of the court that an injunction can only restrain and may not compel a party to perform an act, although a correct statement of the law, was inapplicable to the evidence and pleadings and misleading to the jury, and it was prejudicial to the plaintiff in error, requiring a reversal.
No. 17192. SEPTEMBER 11, 1950.
Clifford R. Green filed suit against Georgia Power Company in Whitfield Superior Court, seeking an injunction and damages. In his petition he alleged that he was the owner of certain lots located in West Antioch Subdivision in Whitfield County, Georgia, upon which he had constructed a dwelling house occupied by him; that the defendant had entered upon the land, had cut and removed trees, was threatening to tear down and remove his house, and had constructed a high-powered electric transmission line directly above his house. He prayed for damages and an injunction to prevent the continued trespass.
The defendant filed its answer and cross-action to the petition, in which it alleged that it was the owner of a right-of-way easement across land lot 278 in the 12th district and 3rd section of Whitfield County, Georgia, granted it in 1928 by one Cleve Smith; that since that time it had maintained a power line on said easement, had recently cleared some trees from the right of way, had constructed another power line on said easement; and it denied that at any point was the new line on any land other than the land over which it had an easement; and alleged that the new line had been completed, and it proposed to transmit electric current over it. By way of cross-action, the defendant alleged: that the dwelling house and outbuildings were directly beneath this new line which was an integral part of its transmission and distribution system for furnishing electric current to its customers; that the easement granted it by Cleve Smith gave it the right to keep the right of way clear of obstructions and to remove obstructions that might interfere with the operation of the line; that its easement deed had been filed for record in the office of the Clerk of the Superior Court of Whitfield County; that some years thereafter the plaintiff had entered upon its right of way and constructed the dwelling house and outbuildings complained of; that the buildings constituted a dangerous hazard to the property of the company and interfered with the proper operation of its transmission lines; that the continued maintenance and occupancy constituted a continuous nuisance and trespass upon the easement; and that its damage was irreparable and it had no adequate remedy at law. The defendant, now the plaintiff in error, sought by way of its cross-action to enjoin the maintenance of a nuisance.
The plaintiff later amended his petition by striking his prayers for injunction and damages. The court then overruled a motion to strike the cross-action, and the case proceeded to trial on the cross-action alone. The case was tried before a jury, resulting in a verdict for the plaintiff, and a judgment was entered refusing the injunction. The defendant filed its motion for new trial, which was later amended by adding three special grounds. The case is now before this court on exceptions to the judgment overruling the motion for new trial as amended.
The first special ground of the motion for new trial objected to the exclusion of a plat of the right of way through land lot 278, and the testimony of the witness Dobbs made in connection therewith. The movant alleged that it had been illegally withheld from the jury; that it was material to the issues; and that its exclusion was harmful to the movant, intending to prove the location of its easement and the exact location of the plaintiff's dwelling house on said easement.
The second special ground objected to the admission in evidence of a plat of the West Antioch Subdivision in land lot 278, because it was too indefinite to identify the property; did not show the location of the subdivision in land lot 278 and, therefore, it is impossible to identify the property by the plat.
The third special ground alleged that the court erred in charging the jury Code § 55-110, that an injunction may only restrain and may not compel a party to perform an act. The movant avers that it submitted to the jury a question of law which should have been passed upon by the court, and allowed the jury to pass upon whether the relief sought by the movant was mandatory in its nature; the question of whether the injunction was mandatory in its nature having already been determined, because the court had overruled a written motion to dismiss the case, which motion raised the question that the relief sought by the movant would bring about the ejection of the plaintiff; and that the writ of injunction could not be maintained for the purpose of ejection; that it was an inapplicable charge and not adjusted to the pleadings, in that the issues to be determined by the jury were whether the buildings were in fact on the right of way and whether they constituted a nuisance as alleged; and that it was confusing to the jury because of other charges of the court.
1. A paper purporting to be a map showing a subdivision of land into lots and streets is admissible if made by an officer authorized to make a survey, or if there is evidence of its genuineness and correctness from the person who made it, or other reliable source. Bower v. Cohen, 126 Ga. 35 ( 54 S.E. 918); Bunger v. Grimm, 142 Ga. 448 ( 83 S.E. 200); Lewis v. Carr, 177 Ga. 761 ( 171 S.E. 298); Durden v. Kerby, 201 Ga. 780 ( 41 S.E.2d 131). The "other reliable source" of such proof may be any person who supervised the survey and who testifies that it is genuine and correct. On this point it was said in Bunger v. Grimm, supra, p. 452: "In principle it would seem to be immaterial whether the witness who proposes to testify to the correctness of the survey be the surveyor, or one who was present at the time the survey was made, if he offers to testify to the correctness of the survey." What has just been said with reference to the map or plat applies likewise to a blueprint of the same, where the witness testifies that, although he did not make it, he was present when it was made and that it is correct. The plat or survey of the right of way referred to in the deed to the defendant and the blueprint thereof, together with the testimony of the witness who was present when they were made, were material evidence for the defendant, and the court erred, as contended in the first special ground of the motion for a new trial, in excluding them. There is nothing contrary to what we have just ruled in either of the following cases relied upon by counsel for the defendant in error: Maples v. Hoggard, 58 Ga. 315; Bower v. Cohen, supra; Mickle v. Moore, 188 Ga. 444 ( 4 S.E.2d 217). In the first of these cases, it was merely held that the paper was inadmissible because the only attempt to prove its correctness was by an affidavit, which was inadmissible. In the second case, after saying that such proof must be made by the person who made it, the court further said, "or other reliable source." And in the third case, the plat was held inadmissible because the witness whose testimony was relied upon to prove its correctness admitted that she did not know where the boundary lines were and had never been to the back side of the land.
2. A plat of West Antioch Subdivision in land lot 278, 12th district and 3rd section of Whitfield County, Georgia, made by R. E. Smith, all of which appears on the face of the plat, was not inadmissible because of indefiniteness, in that it failed to show the original lines of said lot 278. The plaintiff's deed referred to this plat, which was recorded, for a description of lots conveyed to him, and they are shown on the plat. The subdivision is designated, and the original lines would add nothing material to the plat. The court did not err, as contended in the second special ground, in admitting the plat over the objection of the defendant that it was too indefinite. Hardy v. Brannen, 194 Ga. 252, 254 ( 21 S.E.2d 417); Deaton v. Swanson, 196 Ga. 833 ( 28 S.E.2d 126).
3. The sole relief sought by the pleadings, as amended at the time of the trial, was the defendant's prayer that the alleged nuisance created by the plaintiff's buildings upon the defendant's right of way be abated by injunction. The court correctly charged the jury that, if they found that the buildings constituted a nuisance, they should return a verdict for the defendant. The provision of Code § 55-110 ("An injunction may only restrain; it may not compel a party to perform an act. It may restrain until performance.") was also given in the charge, and the third special ground excepts to the portion of the charge which embraced this Code section. The complaint is meritorious. There was no prayer for the removal of the buildings but rather that the plaintiff be enjoined from maintaining the nuisance. A previous ruling denying a motion to strike the defendant's pleadings seeking this relief became the law of the case and entitled the defendant to the injunctive relief prayed for if the jury found it had proven the case as pleaded. A proper construction of the Code section is, that an injunctive order to remove a house or perform other affirmative acts may not be issued without statutory authorization, and the section should be given in a charge only where such a judgment is sought. It was confusing, prejudicial, and erroneous to charge it here, for the jury might easily have concluded therefrom that a verdict for the defendant could not be returned since it would require removal of the buildings. Although the charge is correct as a statement of law, it presented an issue here not made by the pleadings and the evidence, and the court erred in so charging. Bird v. Benton, 127 Ga. 371 ( 56 S.E. 450); Culberson v. Alabama Construction Co., 127 Ga. 599 ( 56 S.E. 765); Central Georgia Power Co. v. Cornwell, 139 Ga. 1 ( 76 S.E. 387).
4. Since the case is reversed on other grounds and the evidence will undoubtedly be different on another trial, no ruling is made on the general grounds of the motion for new trial.
Judgment reversed. All the Justices concur.