Clark v. Childs

321 S.E.2d 727, 253 Ga. 493, 1984 Ga. LEXIS 981
CourtSupreme Court of Georgia
DecidedOctober 17, 1984
Docket41150
StatusPublished
Cited by1 cases

This text of 321 S.E.2d 727 (Clark v. Childs) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Childs, 321 S.E.2d 727, 253 Ga. 493, 1984 Ga. LEXIS 981 (Ga. 1984).

Opinions

Marshall, Presiding Justice.

In May of 1968, G. F. Childs, Jr., sold certain property to Adrian P. Clark. The deed conveying the property contained the following reservation of interest: “Party of the first part herein for the use and benefit of his mother and father, Mr. and Mrs. Floyd Childs, Sr., reserves for them during their joint and several lifetime the exclusive use of the. home dwelling on said land now occupied by them, together with the garden and fruit trees thereon located adjacent to the tenant house on said land; this reservation being for the benefit only of Mr. and Mrs. Floyd Childs, Sr. during their joint lifetime and only for the survivor of them, and no other person.

“Grantor further reserves for his mother and father the right to fish in the fishpond on said land so long as they shall live in said home dwelling, and this privilege shall include any guests of theirs who may accompany them when they go fishing.” G. F. Childs, Sr., died in 1982. His widow, Mrs. Childs, continued to live on the property.

In 1982, Mrs. Childs brought suit against Adrian Clark, alleging that Clark had interfered with her peaceful possession of her life estate by threatening her water supply and her use of the fruit trees and fishing area, and erecting a gate on the road to her house and insisting that she keep it locked. Clark answered, denied these allegations, and counterclaimed for taxes on the life estate which he had allegedly paid and for the cost of the water she had used.

The trial court granted an interlocutory injunction restraining Clark from maintaining the gate, and from interfering with Mrs. Childs’ use. of the fruit trees, the fish pond, and water. In this order, the trial court ruled that under the evidence submitted, the premises encompassed in the life estate was a certain area which he verbally delineated. Subsequently, Clark amended his counterclaim to add claims for waste and for the expense of maintenance, as well as a request that Mrs. Childs be required to insure the property.

The case proceeded to trial before a jury, and the jury returned verdicts in favor of Mrs. Childs on the issues of waste, back taxes, and insurance. The jury found for the defendant on the issue of water in the amount of $96 ($2 a month for four years). Mrs. Childs’ complaint for a permanent injunction was, of course, a matter for determination by the court. Accordingly, the trial court decided that issue and entered the following order: “The court finds the following facts on the matter of the issuance of a permanent restraining order:

“(1) Plaintiff is the owner of a life estate in the home dwelling on the land occupied by plaintiff and her husband during their lifetime, hereinafter described as the ‘premises.’
[494]*494“(2) Plaintiff is the owner of a life estate in the garden and fruit trees located on the ‘premises,’ as hereinafter described.
“(3) Plaintiff is entitled to the use of the fish pond for herself and her friends.
“(4) Plaintiff is entitled to the use of the water supply, located on the ‘premises,’ as hereinafter described, without interference from the defendant; however, she shall be required to pay to the defendant the sum of Two ($2.00) Dollars per month, the amount determined by the jury to be a reasonable monthly fee for the use of said water supply.
“(5) That the lane across which defendant constructed a gate is the only means of ingress and egress to the ‘premises,’ and has been used by the plaintiff, unrestricted, throughout the term of the life estate, until defendant constructed said gate in 1982.
“(6) The ‘premises’ referred to in the warranty deed creating the life estate here in question includes the home dwelling occupied by the life tenants at the time of the execution of said warranty deed, together with the curtilage within which said home dwelling is located, said curtilage being bounded on all sides by a fence, exclusive of the tenant house located on the north side of the fenced curtilage area and the east side of the land. The ‘premises’ further includes the garden area, the boundaries of which are not in controversy.
“IT IS, THEREFORE, ORDERED that:
“A) Defendant is permanently restrained and enjoined from maintaining a gate over, across, or on the lane or the ‘premises’ on which the residence of plaintiff is located, and this court finds that plaintiff has, by virtue of the deed referred to above, as well as by virtue of the use of the property, an easement on, over and to said lane located on the ‘premises,’ as above described.
“B) Plaintiff is entitled to the use and enjoyment of the garden and fruit trees, of whatever description, located on the ‘premises.’
“Q Plaintiff is entitled to the use of the fish pond located on the property described in the warranty deed referred to above, for herself and for her guests who accompany her in the use of said pond.
“D) Defendant is permanently restrained and enjoined from interfering with the water supply to plaintiff’s house for her personal use, as well as the use for watering her garden, fruit trees, flowers, and any and all other items customarily used in the proper upkeep of the residence occupied by plaintiff. This court finds, from the evidence submitted, that plaintiff has an easement for the use of said water supply so long as plaintiff lives; however, plaintiff shall pay to the defendant the sum of Two ($2.00) Dollars per month as the reasonable fee for the use of said water supply.
“IT IS ORDERED FURTHER that defendant shall have a right of ingress and egress across the ‘premises’ by the most direct route available for access to the shed and tenant house.
[495]*495“JUDGMENT ON JURY VERDICT
“The remaining issues in the case having come on for a trial before the court and jury, and the jury having returned its verdict as follows:
“ISSUE OF WASTE
“We the jury find the plaintiff not guilty of wilful waste.
“ISSUE OF WATER
“We the jury find in favor of the defendant on the issue of water in the amount of $96.00. ($2.00 a month for 4 years).
“ISSUE OF TAXES
“We the jury find in favor of the plaintiff on the issue of back taxes.
“ISSUE OF INSURANCE
“We the jury find in favor of the plaintiff on the issue of insurance.
“/s/ Michael W. Jarvis “Foreman of the Jury “September 22, 1983
“IT IS, THEREFORE ORDERED, that judgment be entered on the counterclaim accordingly, in favor of the plaintiff, Mrs. G. F. Childs, Sr., on the issues of waste, taxes and insurance, and that judgment be entered in favor of defendant, Adrian P. Clark, on the issue of water in the amount of $96.00. IT IS ORDERED FURTHER, that cost of this action be cast upon the defendant.”

1. Clark’s contention that the description in the deed was inadequate to convey a life estate is without merit.

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Bluebook (online)
321 S.E.2d 727, 253 Ga. 493, 1984 Ga. LEXIS 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-childs-ga-1984.