Opinion
15688.
APRIL 15, 1947.
Petition for injunction, etc. Before Judge Fort. Talbot Superior Court. September 25. 1946.
John A. Smith, for plaintiff. George R. Jacob, for defendant.
1. The fact that a petition fails to set forth a complete cause of action is not necessarily a sufficient reason for refusing to allow an amendment adding matter of substance.
2. In the instant suit between coterminous city-lot owners, the petition, which alleged that one of the defendants came over to the lands of the petitioner and set some iron posts eighteen inches to two feet on the inside of where the old fence had been located, and ordered the petitioner not to cross over the line where the iron posts were set, contained enough to amend by.
3. This being an equity case, there is no merit in the defendants' motion to disallow the amendment, on the ground that the allegations as to facts occurring subsequently to the filing of the original petition were not the subject-matter of amendment.
4. While courts of equity in a proper case will exercise jurisdiction to settle boundaries between coterminous owners, when the boundaries have become confused or obscure, equity ordinarily requires as a condition to the exercise of this jurisdiction that there should be also some other equity arising from the conduct, situation, or relation of the parties.
( a) The allegations of the original petition, to the effect that the defendant had undertaken to appropriate a strip of land belonging to the plaintiff, coupled with the averments in the proffered amendment relating to the continuing trespass, were, as against the motion to dismiss, sufficient to set forth a cause of action for the relief prayed.
No. 15688. APRIL 15, 1947.
C. M. Calhoun filed in Talbot Superior Court, against O. D. Edwards and Mrs. O. D. Edwards, a petition which alleged substantially the following: The petitioner is the owner of a described lot on the north side of Monroe Street in Talbotton, Georgia, and he and those under whom he claims have been in possession of the land, and have kept a fence along the dividing line in repair for more than twenty years. More than seven years ago the defendant, Mrs. O. D. Edwards, who is the owner of an adjoining lot, built a concrete wall on the edge of her lot, and the western edge of the wall marks the true dividing line as far as the wall extends. A straight line extending due north in line with the western edge of the wall, making a straight line from Monroe Street to the north side of the petitioner's lot with the western edge of the wall, is the true dividing line between the respective parties. The petitioner was engaged in rebuilding the above-mentioned fence on his lands, and had removed the old posts and inserted new posts in the same old holes from whence he removed the old posts, and had dug a hole and set one post in between two of the old ones but in line with the others, when O. D. Edwards, the husband of Mrs. O. D. Edwards, came over to the lands of the petitioner in his absence and set some iron posts 18 inches to two feet on the inside of where the old fence had been located. When told to get off the lands of the petitioner, O. D. Edwards stated that he had set the iron posts on the line and ordered the petitioner not to cross over the line where the iron posts were set for the purpose of completing his fence, and is otherwise obstructing the petitioner from completing his fence, and in so doing is acting for and in behalf of that defendant's wife. The petitioner is desirous of completing his fence, but will be unable to do so without a personal encounter with O. D. Edwards. The above action of the defendants constitutes a tort against the petitioner. He has no adequate remedy at law and has been injured by the aforesaid delay in repairing his fence in the sum of $100. The prayers were: (a) that the defendants be enjoined from interfering with the petitioner in his efforts to repair his fence; (b) that the line set out in the petition be decreed to be the true dividing line between the respective parties; (c) that the petitioner have judgment against the defendants in the sum of $100; (d) that the petitioner have general relief; (e) that process issue. An abstract of title was attached to the petition as an exhibit. A temporary restraining order was granted and a rule nisi issued.
An amendment was tendered which sought to strike from the petition the allegations to the effect that the petitioner had been injured in the sum of $100 and to substitute in lieu thereof the following: The petitioner has been impeded in his efforts to repair the fence, thus causing him damage which cannot be estimated in dollars and cents. Since filing the suit the defendants have continued to interfere with the rights of the petitioner, which acts constitute a continuing trespass. The acts of the defendants in preventing him from replacing his fence and in trespassing on his lands have kept him from making a sale or renting the lands to the best advantage, and have caused irreparable injury. It is necessary for the court to grant relief in the manner sought, in order to avoid a multiplicity of suits. The petitioner brings this suit for the purpose of having the line described therein established as the correct dividing line between the lands of the respective parties, and to enjoin the defendants from interfering with his possession up to the line, and from trespassing on his land.
The defendants in a written motion objected to the allowance of the amendment and moved the court to strike the petition, and dismiss the defendants on the grounds: "1. Plaintiff failed to set out a cause of equity jurisdiction in his original petition, and since no cause of equity jurisdiction is set out in the original petition, the allowance of the amendment would be improper, and the amendment should not be allowed. 2. Plaintiff seeks by amendment to inject a new cause of action into the case, by alleging defendants had thrown waste water upon allegedly owned lands of plaintiff `since the filing of this suit,' and any cause of action whatever would be a new and distinct cause of action if no trace of it could be found in the original petition. 3. There was no trace of the allegations that defendants had thrown waste water upon plaintiff's lands set forth in the original petition, and there must be some trace of a particular cause of action in the original petition in order that it may contain enough to amend by. 4. There was nothing in the original petition to warrant a court of equity assuming jurisdiction of the cause; and since the lack of jurisdiction of a court of equity is apparent on the face of the original petition, [and] the original design and allegations of plaintiff, carried out in full, would embrace no cause of equity jurisprudence or equity jurisdiction, the petition is not amendable. 5. The petition fails to prove or reveal any facts to support the allegations that the alleged acts complained of constitute damages which would be irreparable. 6. The petition fails to allege any acts or things which would avoid a multiplicity of suits or circuity of actions. 7. The petition fails to allege acts or things which would constitute and be categoried as a continuing trespass. 8. The petition fails to allege any acts or things constituting waste. 9. The petition fails to allege insolvency."
The trial court disallowed the amendment, and dismissed the action. The plaintiff excepted to these judgments.
1. "All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by." Code, § 81-1301; Powell on Actions for Land (Rev. Ed.), p. 111, § 113. "Enough to amend by in matter of substance, in aid of an incomplete cause of action, is the least amount of substance in a declaration which will serve to show that, according to the original design of the pleader, what is offered to be added rightly belongs to the cause of action which he meant to assert, and that the addition proposed would make the cause of action complete. There must be a plaintiff, a defendant, jurisdiction of the court, and facts enough to indicate and identify some particular cause of action as the one intended to be declared upon, so as to enable the court to determine whether the facts proposed to be introduced by the amendment are part and parcel of that same cause. Any amendment whatever which, if allowed, would leave the cause of action incomplete, should be rejected." Ellison v. Georgia Railroad Bkg. Co., 87 Ga. 691 (6) ( 13 S.E. 809); Harrell v. Parker, 186 Ga. 760 (2), 765 ( 198 S.E. 776); Silverman v. Alday, 200 Ga. 711 (2) ( 38 S.E.2d 419).
2. Whether or not the allegations of the original petition were sufficient to set forth a complete cause of action, it cannot be held that they were insufficient to set forth an imperfect cause of action, as to which see Davis v. Muscogee Mfg. Co., 106 Ga. 126 ( 32 S.E. 30); Shepherd v. Southern Pine Co., 118 Ga. 292 (2) ( 45 S.E. 220); Jones v. Robinson, 172 Ga. 746 (3) ( 158 S.E. 752): Simmons v. Beatty, 57 Ga. App. 350, 356 ( 195 S.E. 289). None of these decisions held that a petition is not amendable merely because, without amendment, it does not state a complete cause of action. It follows that the original petition, which alleged that one of the defendants came over to the lands of the petitioner and set some iron posts eighteen inches to two feet on the inside of where the old fence had been located, and ordered the petitioner not to cross over the line where the iron posts were set, contained enough to amend by.
3. The amendment which was disallowed in the present case contained, among others, allegations to the effect that since the filing of the suit one of the defendants has ordered the petitioner to refrain from going on the lands up to the line described in the original petition, and continues to do so; that the defendants have continued to pour slops across the correct line, and to reach over the line and onto the lands of the petitioner and trim a hedge and throw limbs onto the lands of the petitioner and to push the remaining fence that was not removed across the line onto the lands of the petitioner, and that these acts have been repeated many times since the controversy arose and constitute a continuing trespass.
The question, therefore, arises as to whether a petition in an equity case may be amended by setting forth matters that occurred subsequently to the filing of the petition. Ordinarily the status of a suit becomes fixed at the time the action is instituted, and therefore, when there is no cause of action at the commencement of the suit, there can be no recovery, although one may accrue respecting the same subject-matter while the suit is pending. Wadley v. Jones, 55 Ga. 329; Deas v. Sammons, 126 Ga. 431 ( 55 S.E. 170. 7 Ann. Cas. 1124); Kelly v. Cherry, 40 Ga. App. 178 ( 149 S.E. 81). However, this court held in Becker v. Donalson, 133 Ga. 864 (7) ( 67 S.E. 92): "Since the adoption of the uniform procedure act of 1887 (Acts 1887, p. 64), the provisions of which are set forth in part in the [Code, § 37-901], where the plaintiffs institute suit for specific performance of an alleged contract for the conveyance of land, for cancellation of deeds, for injunction, and for damages, founded upon their alleged right to the land, the defendants may in their answer assert a right to affirmative relief, such as damages alleged to result from trespass by the plaintiffs upon the land in dispute, and may afterwards by amendment to their plea assert a right to such damages which occurred subsequently to the filing of the original plea." The above decision was followed in Hogan v. Cowart, 182 Ga. 145 (7) ( 184 S.E. 884), where it was held: "Paragraph 18 of the petition as amended on October 12, 1934, alleges damages in the sum of $176, accrued since institution of the suit, as the value of stated quantities of corn and fodder which the land would have produced during the year, but had not produced on account of the alleged trespass in closing the ditch. The Code of 1933, § 105-1406, providing: `Damages for a continuing trespass are limited to those which have occurred before action is commenced. Subsequent damages flowing from a continuance of the trespass give a new cause of action,' applies to actions at law but not to causes in equity." Again in Byrd v. Prudential Insurance Co., 185 Ga. 310, 314 2d ( 195 S.E. 403), it was said: "This being an equity case, there is no merit in the defendant's demurrer to such amendment, so far as based on the ground that the allegation that the debt had matured since the filing of the original petition added a new cause of action, and that the allegations as to facts occurring subsequently to the filing of the original petition were not the subject-matter of amendment."
Applying the above principles to the pleadings in the instant case, the original petition, which alleged that one of the defendants came over to the lands of the petitioner and set some iron posts eighteen inches to two feet on the inside of where the old fence had been located, and ordered the petitioner not to cross over the line where the iron posts were set, was amendable by setting forth that subsequently to the filing of the suit the defendants continued in their attempts to exercise acts of dominion over the petitioner's strip of land, and that such acts constituted a continuing trespass. It appears from the allegations of the original petition and the amendment, fairly construed, that the acts of trespass alleged to have been committed after the suit was filed were not separate and distinct from the original trespass, but that they constituted a part of an original design upon the part of the defendants to appropriate a strip of the petitioner's land; and this is true although some of the subsequent trespasses were committed by means different from the original act alleged to have taken place before the suit was filed.
The present case is, therefore, distinguishable from Bank of Brooklet v. Motor Liens, 164 Ga. 314 ( 138 S.E. 582); Gray v. Federal Land Bank, 182 Ga. 894 ( 187 S.E. 104); Mitchell v. Mitchell, 201 Ga. 621 ( 40 S.E.2d 738), and similar cases in which the acts that were alleged to have taken place after the commencement of the suit were separate and distinct from those that were alleged in the original petition to have taken place before suit was filed. The instant case is also distinguished by its facts from the following cases. In Barton v. Rogers, 166 Ga. 802 ( 144 S.E. 248), where an amendment was offered in a suit seeking to enjoin the establishment of a coal and ice business, it was held: "The court did not err in disallowing an amendment pleading acts of nuisance subsequently to the filing of the original petition. As amendments relate to the commencement of the suit, facts variant from the circumstances and conditions obtaining at the time suit was filed would be irrelevant and incompetent to establish allegations based upon a theory different from that relied on at the time of the filing of the action, and would add a new and distinct cause of action." A similar ruling was rendered in Atlantic Refining Co. v. Farrar, 171 Ga. 371 ( 155 S.E. 327), involving a suit which sought to enjoin the erection of a filling-station. In these cases the original petition was based upon the theory that the establishment of the business would constitute a nuisance per se, whereas the amendment sought to show that the operation of the business constituted a nuisance per accidens. In Cooley v. Enzor, 190 Ga. 290 ( 9 S.E.2d 277), the amendment, the disallowance of which was excepted to, alleged "that the defendant had not yet erected a filling-station on his property, but had done some grading thereon and installed an old gasoline pump, but was not operating the same, and was not equipped for serving the public as a gasoline filling-station, but that he continued to threaten to operate a filling-station thereon."
4. While courts of equity in a proper case will exercise jurisdiction to settle boundaries between coterminous owners, when the boundaries have become confused or obscure, equity ordinarily requires as a condition to the exercise of this jurisdiction that there should be also some other equity arising from the conduct, situation, or relation of the parties. Powell on Actions for Land (Rev. Ed.), 52, § 57 (a), note 24; Georgia Perurian Ochre Co. v. Cherokee Ochre Co., 152 Ga. 150 ( 108 S.E. 609). The allegations of the original petition in the present case, to the effect that the defendant had undertaken to appropriate a strip of land belonging to the plaintiff, coupled with the averments in the proffered amendment relating to the continuing trespass were, as against the motion to dismiss which was in the nature of a general demurrer, sufficient to set forth a cause of action for the relief prayed. Lockwood v. Daniel, 193 Ga. 122 (5, 6) ( 17 S.E.2d 542). See also Crockett v. Wofford, 166 Ga. 630 ( 144 S.E. 27). Accordingly, the trial court erred in disallowing the amendment, and in dismissing the action.
No ruling is made on special demurrers which, according to the brief of counsel for the plaintiff in error, were filed to the petition, but which the present transcript of the record does not show were passed upon by the trial court.
Judgment reversed. All the Justices concur.