Mrs. Hattie Moore, R. V. Wilkes, J. B. Wilkes, Hawkins Wilkes, Bennett Wilkes, and Claude Wilkes, alleging that - they are the children and heirs of James Wilkes, from whom they inherited the tract of land described in the petition, alleged that M. H. Newsome, on or about January 1, 1924, entered upon the lands of petitioners and cupped the pine timber thereon and appropriated the gum turpentine and carried it away from the land; and that he is continuing to do this without any right, title, or interest in the gum turpentine, over the protests of the petitioners and to their injury and damage. The resulting damages are fully detailed in the petition. It is alleged that the defendant will continue to chip and otherwise work the timber on their land for turpentine purposes, and further injury and damage to said timber and to petitioners will result unless he is restrained by the court; that the conduct stated amounts to a continuing trespass; that the injury is irreparable in nature, because the damage is incapable of being definitely and accurately ascertained; that the timber being damaged has a'value above the commercial value, because it is necessary for the upkeep of the premises and for fuel purposes, that the continuing of these trespasses will give rise to a multiplicity of suits, and that petitioners have no complete and adequate remedy at law. The plaintiffs pray, among other things, that the defendant be enjoined from trespassing or going upon the land, from further working said timber for turpentine, and from removing any gum or turpentine products from said land.
In his answer the defendant resisted the grant of an injunction, upon the ground that he is entitled to possession of the premises, alleging that he entered upon the lands described in good faith
The plaintiffs amended their petition by striking out the words “together with their mother,” so as to claim the entire ownership of the land in question solely for themselves; and by alleging that Mrs. Wilkes had conveyed whatever interest she had in the land to George Claude Wilkes prior to the alleged contract of lease upon which the defendant relied. Evidence was introduced in support of all of the allegations of the petition. Mrs. Elizabeth Wilkes testified that the lease she had executed was made after a trade with D. A. Autrey, and that the time for which the lease was given had expired. She testified: “If said lease now shows to be a four-year lease, the same has been altered since it was executed.” She further admitted that she executed the deed to her son, George Claude Wilkes, as alleged in the petition. With this evidence before the court it can not be said that the judge of the superior court occupying the position, as he does, of a trior upon all issues of fact, did not properly exercise his discretion in granting an interlocutory injunction as prayed until the trial of the ease.
Counsel for plaintiff in. error insists - that the grant of a year’s support to Mrs. Elizabeth Wilkes conveyed title to her as a tenant in common with the children, who are now petitioners. They con
Furthermore, the land set apart has no other description than “230 acres of land.” The return is void for lack of description of the property set apart, and for that reason can not be held to be color of title. But even if the return were good as color of title, it can not serve to support a lease from Mrs. Elizabeth Wilkes, since no land was given her in the return of the appraisers. As pointed out in Ayer v. Chapman, 147 Ga. 715 (95 S. E. 257), distinguishing the Bowman case, supra, “the plaintiffs had the right to the possession during the several terms of the defendant’s predecessors who made improvements.” In the present case the return of the appraisers never gave Mrs. Wilkes any possession in her own right, even if the land had been so accurately described as to identify the premises. Color of title can not arise or serve to give right of possession where it does not appear that it is possible to identify the premises. In the present case it does not appear from the return of the appraisers whether the land is in the State of Georgia or some other State, or that it may not be in Dade County instead of in Laurens.
Judgment affirmed.