Opinion
33912.
DECIDED APRIL 11, 1952.
Action for damages; from Louisville City Court — Judge Abbot. October 30, 1951.
M. C. Barwick, O. B. Cannon, for plaintiff.
Frank Hardeman, Q. L. Bryant, for defendants.
1. A joint tenant, tenant in common, or other person having a part interest in lands or tenements may have and maintain an action for damages for injury to his interest therein, without joining with him any other persons as plaintiff.
2. The allegations of the petition, that certain county and municipal officers and employees acted in concert to make an entrance and roadway into Bartow Cemetery over the cemetery plot in which the plaintiff owned an undivided interest and in which the remains of deceased members of the plaintiff's family were buried, were sufficient to show a trespass on the part of the individual defendants against the plaintiff's rights in the cemetery plot, and further to show such general disregard of the right consideration of mankind as would make the county and municipal officials personally liable for such trespass.
3. The petition set out a cause of action against the defendant municipality for the taking and damaging of private property for public purposes without just and adequate compensation being first paid; but the defendant county was not liable for such taking and damaging of the plaintiff's property, within the limits of the defendant municipality, as it was not done for any public purpose of the county, and as the cemetery entrance and roadway formed no part of the county or State highway system within the defendant municipality.
4. The trial judge erred in sustaining the demurrers and dismissing the petition as to the defendant municipality and the individual defendants.
DECIDED APRIL 11, 1952.
W. B. Kitchens brought a suit against Jefferson County, the Town of Bartow, Wylly T. Jordan, E. L. Brim, J. B. Stanley, and Lonnie Williams for a trespass on a cemetery lot. He alleged in his amended petition: that B. F. Kitchens, the father of the plaintiff, purchased a certain cemetery plot, located in the Bartow Cemetery, in Bartow, Jefferson County, Georgia, from Mrs. Ida Salter by warranty deed, duly recorded, a copy of which was attached to the petition; that the plaintiff is an heir at law of B. F. Kitchens and owns an undivided one-sixth interest in the plot; that the plaintiff and B. F. Kitchens have been in continuous, open possession of the plot for more than twenty years prior to the acts of trespass alleged; that the cemetery plot, before the alleged trespass, was plainly marked by stakes and was separated by a brick wall on the south from the road to the Bartow School; that the graves on said plot were marked by iron stakes; that the plot is the burial ground for the Kitchens family, where the last remains of the plaintiff's relatives and loved ones are buried; that the members of the plaintiff's family buried in the plot are Minnie Kitchens, sister, Hattie Jule Kitchens, sister, Thomas W. Kitchens, brother, Mrs. B. F. Kitchens, mother, B. F. Kitchens, father, Pearl Joiner, niece, Pearl Kitchens Joiner, sister, Eleanor Joiner, niece, and B. F. Kitchens Jr., brother; that the defendant, Wylly T. Jordan, a Commissioner of the Board of Roads and Revenues of Jefferson County, at the instance of and in concert with Lonnie Williams, Mayor of the Town of Bartow, without any investigation whatsoever, instructed J. B. Stanley, County Warden of Jefferson County, to direct E. L. Brim, one of his employees, to take certain convict labor in the custody of Jefferson County and make an entrance to Bartow Cemetery over the plot in question; that E. L. Brim, under these instructions and directions, caused the convict labor to tear away a portion of the brick wall separating the plot on the south from the road leading to Bartow School, to place a culvert in the ditch between the road and the Kitchens plot, to fill in dirt over the culvert making an entrance to Bartow Cemetery into and over the Kitchens plot, to pull up the iron stakes on the plot marking the graves of the plaintiff's relatives and loved ones, to strip the limbs from a large cedar tree located in the southeast corner of the Kitchens plot, thereby defacing it, and to make a roadway into the cemetery over the Kitchens plot and across the graves of the Kitchens family; that these acts of trespass were committed by all of the defendants in concert and were in reckless disregard of the plaintiff's rights, amounting to a wilful and intentional violation of the rights of the plaintiff and causing the plaintiff embarrassment, humiliation, and wounded feelings; that these acts of trespass were a wilful and unlawful desecration of the graves of the plaintiff's relatives and loved ones, without warrant or authority and without the plaintiff's knowledge; and that as a result of the acts complained of the plaintiff suffered property damage to his interest in the sum of $100. The plaintiff prayed for the recovery of property damages of $100 and punitive damages of $10,000. The deed attached was a warranty deed from Mrs. Ida Salter to B. F. Kitchens, dated December 23, 1904, and conveying one lot of land bounded on south by street running from Bartow Baptist Church to the Bartow Academy, on west, north, and east by land of Mrs. Ida Salter, being thirty feet by thirty feet.
The defendants filed general and special demurrers, the general demurrers being on the ground that no cause of action was set out in the petition because no title was shown in the plaintiff, and no acts were alleged resulting in injury or damage to the plaintiff. As further grounds of their general demurrers, the county and the town set out that they were not liable for the negligence of their employees, and that no authority for the alleged acts on their part was shown. The county also contended that it was not subject to suit unless made so by statute, and that there was no provision of law for the present action against it. These demurrers were renewed after the petition was amended. The court sustained the demurrers and dismissed the amended petition, and the plaintiff excepted.
1. The petition shows that the plaintiff owns an undivided one-sixth interest in the cemetery lot in question, as an heir of his father who owned the lot prior to and at the time of his death and was buried in it. A joint tenant, tenant in common, or other person having a part interest in lands or tenements may have and maintain an action for damages for injury to his interest therein, without joining with him any other person as plaintiff. Code, § 33-103. See also Code, § 3-111; Sanford v. Sanford, 58 Ga. 259 (2); Wilson v. Chandler, 60 Ga. 129; Crawford v. Clark, 110 Ga. 729, 739 ( 36 S.E. 404); Thompson v. Sanders, 113 Ga. 1024 ( 39 S.E. 419). The suit was brought for damages to the plaintiff's interest in the lot, not to the whole or joint interest therein, and for punitive damages. The petition does not show that the defendants owned the cemetery lot, and this distinguishes the present case from that of Flynt v. Flynt, 65 Ga. App. 862 ( 16 S.E.2d 794), relied on by the defendants. See Turner v. Joiner, 77 Ga. App. 603, 611 ( 48 S.E.2d 907).
2. It is alleged that Wylly T. Jordan, a Commissioner of the Board of Roads and Revenues of Jefferson County, at the instance of and in concert with Lonnie Williams, the Mayor of the Town of Bartow, instructed J. B. Stanley, the county warden, to direct E. L. Brim, one of his employees, to make an entrance to Bartow Cemetery over the Kitchens plot, and that E. L. Brim, under these instructions and directions, caused the county's convict labor to tear away a portion of the brick wall separating the plot on the south side from the road to the Bartow School, to place a culvert in the ditch between the road and the Kitchens plot, to pull up iron stakes on the plot marking the graves of the plaintiff's relatives, to strip the limbs from a large cedar tree located in a corner of the Kitchens plot, and to make a roadway into the cemetery over the Kitchens plot and across the graves of the Kitchens family. These allegations were sufficient to show a trespass on the part of the individual defendants against the rights of an owner of an interest in the burial plot. West View Corp. v. Alexander, 83 Ga. App. 810 ( 65 S.E.2d 38); Turner v. Joiner, 77 Ga. App. 603, supra; O'Neal v. Veazey, 143 Ga. 291 ( 84 S.E. 962). Officers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers, if done oppressively, maliciously, or without authority. Code, § 69-208. Malice may consist in "a general disregard of the right consideration of mankind, directed by chance against the individual injured." Code, § 105-1002. The allegations of the petition as above set out show such general disregard of the right consideration of mankind as would make these officials personally liable. Furthermore, "One who procures or assists in the commission of a trespass is equally liable with the actual perpetrator for the damages which the owner of the property sustains thereby." Burns v. Horkan, 126 Ga. 161, 165 ( 54 S.E. 946); Code, § 105-1207. The petition set out a cause of action against the individual defendants.
3. The petition may also be construed as setting out a cause of action for the taking and damaging of private property for public purposes without just and adequate compensation being first paid, as provided by article 1, section 3, paragraph 1, of the Constitution of 1945 (Code, Ann., § 2-301). City of Atlanta v. Due, 42 Ga. App. 797 ( 157 S.E. 256), and citations. It was alleged that the entrance or street complained of was made into the cemetery in the Town of Bartow and over and through the Kitchens plot in said cemetery. Under the facts alleged, Jefferson County would not be liable for the taking and damaging of the plaintiff's interest in the cemetery lot by the construction of the street or entrance into the cemetery, on the theory that a county may co-operate with a municipality within the county in the construction of certain roads and streets which form a part of a county or State system of highways (Code, Ann. Supp., § 23-601), for the entrance to the cemetery was not such a street or highway. The alleged taking and damaging of the plaintiff's property was for a public purpose of the Town of Bartow, not of Jefferson County, and the cemetery entrance formed no part of the county or State highway system in the Town of Bartow.
The contention is made that the acts of locating the new entrance into the cemetery and directing that it be made were not shown to be those of the town but only of the mayor thereof, personally and individually. The charter of the Town of Bartow (Ga. L. 1914, pp. 444, 445) authorizes the location and laying off of new streets, alleys, or ways within the town and the alteration of the same. This distinguishes the present case from that of McDonald v. Butler, 10 Ga. App. 845 ( 74 S.E. 573), where it was held that a city was not liable for a trespass committed by its officers in disinterring the remains of a person buried in a municipal cemetery, in the absence of charter power in the city to do so. The charter of the Town of Bartow also provides that the mayor is the supreme executive officer of the city government, exercising in all things a general supervision of the city's affairs (Ga. L. 1914, p. 433), and the petition shows that the entrance to the cemetery was made at the mayor's instance. "If the entry upon land which is graded and opened for a street was unauthorized and tortious, the tort-feasor would be estopped to defend, as against the action of one who had been injured, upon the ground that the action of the municipal authorities was unauthorized." City of Atlanta v. Williams, 15 Ga. App. 654 (8) ( 84 S.E. 139). Here, the Town of Bartow is estopped to defend the plaintiff's action on the ground that acts of the mayor were unauthorized.
4. The petition set out a cause of action against the Town of Bartow and the individual defendants, but not against Jefferson County; and the trial judge erred in sustaining the demurrers and dismissing the petition as to the Town of Bartow and the individual defendants.
Judgment reversed in part and affirmed in part. Felton and Worrill, JJ., concur.