New v. Montford

154 S.E.2d 19, 223 Ga. 154, 1967 Ga. LEXIS 453

• Court: Supreme Court of Georgia
• Decided: February 23, 1967
• Docket: 23959
• Status: Published

Opinion

Duckworth, Chief Justice.

This is an action to enjoin a continuing trespass and nuisance, and a continuing interference with an alleged prescriptive private way across a part of the defendant’s property as well as that of the plaintiff, allegedly resulting in irreparable harm and injury. The petition has been twice amended and certain demurrers have been sustained and overruled, and thereafter renewed upon the filing of amendments to meet certain demurrers. As finally amended and ruled upon, the appellant complains that the court erred in overruling the renewed general demurrer and two special demurrers calling in each instance for more particularity of pleading. Held:

1. The petitioner alleges, in addition to the averments as to continuing trespass upon his own property, interference with a private way over a part of defendant’s property which joins petitioner’s on its south side, part of said private way being on both lots, describing with particularity the location and width of the private way and approximate size on defendant’s lot with its establishment, maintenance and repair for a period of more than 20' years by petitioner and his predecessor in title and by petitioner from 1956. Certainly without question the petitioner alleges a cause of action for some of the relief prayed in that he alleges that the defendant is continuing to trespass on his own property by placing a concrete monument on his lawn and that he intends to erect a fence along the alleged property line and to permanently obstruct the private way over which the petitioner has a prescriptive easement. The pleadings are sufficient to withstand a general demurrer, and the enumerated error for failing to sustain it is not meritorious.

Submitted February 14, 1967 — Decided February 23, 1967. W. Ward Newton, Richardson, Doremus & Karsman, Perry Bramen, for appellant. Rogers, Terry & Coolidge, Dunn, Hunter, Houlihan, Maclean & Exley, J. Walter Cowart, for appellees.

2. The two special demurrers calling for more particularity of pleadings, being critics, must be perfect, and in this instance, both call for pleadings amounting to evidence, which is not required to be pled with particularity. The pleadings are sufficient to put the defendant on notice of what is intended to be proven on the trial, and neither of the enumerated errors complaining of the overruling of these demurrers is meritorious.

Judgment affirmed.

All the Justices concur.