Powers v. Kleven

Nichols, Judge. The plaintiff’s petition shows that the property conveyed to him by the defendant is rectangular in shape, that the defendant owns the property on three sides of such property, and that the fourth side is a “right-of-way” designated by the defendant. The plaintiff seeks to have declared whether or not the defendant can claim title to the “right-of-way” so as to prevent its use by the plaintiff, and whether the plaintiff has a right to erect electric wires over the “right-of-way.” He also seeks to have declared whether the contract entered into between the parties is a valid contract, and, if [706] valid, whether there are provisions under it which would still bind him. “ ‘While our declaratory-judgment statute itself says that it should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest. Shippen v. Folsom, 200 Ga. 58 (35 S. E. 2d 915); Clein v. Kaplan, 201 Ga. 396 (40 S. E. 2d 133); 1 C. J. S. 1027, § 18; 16 Am. Jur. 280, 286, §§ 7 and 13.’ Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (42 S. E. 2d 567). See also Georgia Marble Co. v. Tucker, 202 Ga. 390 (43 S. E. 2d 245).” Sumner v. Davis, 211 Ga. 702 (1) (88 S. E. 2d 392). See also Savannah Theatres Co. v. First Federal Savings &c. Assn. 93 Ga. App. 487 (92 S. E. 2rd 217), and U.S. Casualty Co. v. Ga. &c. Ry. Co., 95 Ga. App. 100 (97 S. E. 2d 185), and cases cited. “In the present case the petition does not allege that the petitioner is without an adequate remedy at law or in equity, but on the contrary it is clear that he has an adequate remedy at law. Whatever rights the parties have are accrued already, and no facts or circumstances are alleged that show that an adjudication of their rights is necessary in order to relieve them from the risk of taking any future undirected action incident to their rights, which action without direction might jeopardize their interest.” Peoples v. Bass, 93 Ga. App. 71 (3) (90 S. E. 2d 926). Whatever the rights of the parties are in the present case they are rights which have already accrued, for as stated in the plaintiff’s petition: “The plaintiff would be able to comply with the terms of the aforementioned contract were it not for the [707] interference of the defendant as aforesaid.” This interference had reference to the “right-of-way,” and whatever the rights of the parties are concerning such “right-of-way,” they accrued at the time the property was conveyed from the defendant to the plaintiff. There are no allegations in the plaintiff’s petition that he does not have an adequate remedy at law or in equity, nor do the allegations of his petition show that he is without an adequate remedy. Therefore, the petition failed to set forth a cause of action for a declaratory judgment, and the judgment of the trial court overruling the defendant’s demurrer, which demurrer challenged the propriety of a declaratory judgment, must be reversed. Judgment reversed. Quillian, J., concurs. Felton, C. J., concurs specially.