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Haney v. Sheppard

Supreme Court of Georgia
Jul 11, 1950
207 Ga. 158 (Ga. 1950)

Opinion

17179.

JULY 11, 1950.

Petition for injunction. Before Judge Guess. DeKalb Superior Court. April 24, 1950.

W. E. Zachary, for plaintiff.

Gray Skelton and Thomas O. Davis, for defendant.


Where the only relief sought was an injunction against the obstruction of an alley after such obstructions had been placed therein, the petition was subject to the demurrer that there was an available remedy at law, and a mandatory injunction should not have been granted. The allegation of the existence of three separate obstructions to the same alley was not sufficient to authorize equity to assume jurisdiction for the purpose of avoiding a multiplicity of suits.

No. 17179. JULY 11, 1950.


John W. Haney brought an action against Clotede A. Sheppard, alleging: that both the petitioner and the defendant owned lands in Ingleside Subdivision, DeKalb County, Georgia, their lands being separated by a ten-foot alley, which is shown by a plat of a survey of the Ingleside Subdivision prepared by the developer and former owner of the same; that their respective lands were purchased in accordance with the plat, which is on record in the DeKalb County courthouse; that the said alley and streets in the subdivision, as shown by the plat, were dedicated to the public use and to the use of the owners and purchasers of the lots in the subdivision; and that both the petitioner and the defendant are the successors in title to the owner and developer of the subdivision, and as such are entitled to the use of said alley. It was further alleged: that the defendant has blocked and obstructed the entrance of said alley on the northern side of Cedar Street; that he has further obstructed and blocked said alley approximately 185 feet north of Cedar Street, and again approximately 220 feet north of Cedar Street, thereby preventing the use or benefit of the alley by any others; that he has thereby appropriated and converted the alley to his own use and benefit, and is illegally, wrongfully, and wilfully denying to the adjoining property owners and your petitioner the use and benefit of said alley; that said obstructions constitute a nuisance, which is a continuing one from day to day and from which the petitioner has suffered damage; that said obstructions are causing great loss and inconvenience and tend to decrease the value of the petitioner's property; that the petitioner has requested the defendant to abate the nuisance, but this he has failed and refused to do; and that the petitioner is without an adequate remedy at law, and this action is brought to prevent a multiplicity of actions.

The prayers were that the defendant be temporarily and permanently restrained from obstructing said alley or in any way interfering with the unrestricted use of said alley, that he be enjoined from maintaining said nuisance, and for general relief.


That equity will not take cognizance of plain legal rights where an adequate and complete remedy is provided by law (Code, § 37-120) is the universal rule and is not here questioned, but there are certain decisions of this court which, on casual reading, tend to indicate that equity will entertain jurisdiction to enjoin the maintenance of an obstruction of a highway as a nuisance, notwithstanding the legal remedy provided under Chapter 72-2 of the Code. The first of such decisions was Russell v. Napier, 80 Ga. 77 ( 4 S.E. 857). But as pointed out in Campbell v. Deal, 185 Ga. 474 ( 195 S.E. 432), that decision was reviewed in Simmons v. Lindsay, 144 Ga. 845 ( 88 S.E. 199), and certain language therein explained and attention called to the decision in Georgia Pacific Ry. v. Douglasville, 75 Ga. 828, which apparently is in conflict with Russell v. Napier, supra, and to the extent that there exists a conflict the older decision would control. While the opinion in Simmons v. Lindsay, supra, did not have the concurrence of all the Justices, it was later approved in Smith v. Parlier, 152 Ga. 100 (3) ( 108 S.E. 515), all the Justices concurring, and again in Campbell v. Deal, supra. Injunctive relief for the removal of obstructions was upheld in Lockwood v. Daniel, 193 Ga. 122 ( 17 S.E.2d 542), but the ground upon which that ruling was based was that, despite the statutory remedy at law for a removal of obstructions and the remedy at law by ejectment, equity would, under Code § 37-901, settle the whole controversy to avoid a multiplicity of suits. For similar reasons it was held in Westbrook v. Comer, 197 Ga. 433 ( 29 S.E.2d 574), that equity should grant injunctive relief because it was alleged and admitted that the defendant there had taken possession of a portion of the right-of-way and was using it for a garden and for planting shrubbery. The injunction there complained of restrained the defendants from using the alley "for any purpose other than an alley and from obstructing same, and . . from using the same in any way, manner, or form so as to interfere with the rights of plaintiffs' use of said space as an alley." It is thus plain that, in addition to seeking a removal of the obstructions, the petitioner there sought to prevent the defendant from going upon and using lands embraced in the alley. In Ozbolt v. Miller, 206 Ga. 558 ( 57 S.E.2d 601), the petition, in addition to injunctive relief, sought to recover damages, and it was merely held by this court that the petition was not subject to the general demurrer.

By the foregoing explanation of our decisions we hope to make it clear that the rule in such cases is that equity will in no case grant an injunction for the sole purpose of requiring one to perform an act such as the removal of an obstruction in an alley or road in violation of Code § 55-110 and while there are available adequate remedies at law; but, where there are other grounds for equity jurisdiction, such as the avoidance of a multiplicity of suits, equity will exercise jurisdiction and grant full relief even though obedience to the injunction might require the performance of an act such as the removal of an obstruction.

The present petition shows no such grounds for equitable jurisdiction, and the only attempt to do so is by alleging three separate obstructions in the same alley. The removal by statutory procedure of such obstructions may be done in one action and would not require a multiplicity of suits. For the reasons that (1) there is an available remedy at law, and (2) the sole relief sought by the petition was to require the defendant, by injunction, to perform the act of removing the alleged obstructions, the petition failed to state a cause of action, and the court did not err in sustaining the demurrer and dismissing the same.

Judgment affirmed. All the Justices concur.


Summaries of

Haney v. Sheppard

Supreme Court of Georgia
Jul 11, 1950
207 Ga. 158 (Ga. 1950)
Case details for

Haney v. Sheppard

Case Details

Full title:HANEY v. SHEPPARD

Court:Supreme Court of Georgia

Date published: Jul 11, 1950

Citations

207 Ga. 158 (Ga. 1950)
60 S.E.2d 453

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