Zoeller v. Offer

¶1 This appeal is perfected from a judgment sustaining a special exception to a petition of appellant, in which she sought a writ, enjoining and restraining ap-pellees from maintaining fences op other obstructions in and upon certain streets in the town of Waring, and commanding them to remove any such fences or other obstructions from such streets.

¶2 The court sustained the third special exception, which was as follows:

“Further excepting, defendants say that there is no description of the' particular part of the premises, streets, and avenues claimed to have been so obstructed by them, and in particular the alleged Avenues A, B, and E, and of this the defendants pray judgment of the court.”

¶3 It was alleged that appellant was the owner of blocks Nos. 9 and 10, each containing 12 lots of land, each shown on the plan of the town of Waring, and each having a frontage on Fredericksburg street, which is on the plan as a street 60 feet wide, and is one of the main thoroughfares; that there is also a street 60 feet wide between blocks 9 and 10, and that all the streets are public, and included in the dedication of same made by Waring. It was alleged that a large body of land on which is situated the town of Waring was dedicated by R. P. M. Waring to the public; that in all the conveyances of lots the plan made by Waring is recognized. It was alleged that appellees had fenced and obstructed certain streets, naming them, and have deprived appellant of access to her lots.

¶4 [1, 2] We think there was a sufficient description in the petition by which the land could be identified. No more certain description is required in a petitioh than in a deed, and the rule is well established as to descriptions in deeds that whatever can be made certain is certain. The plat or plan of the town can be used, and will fully indicate the location of the streets alleged to be obstructed. This can be done, although the plan was not made a part of the petition. We do not believe appellees will experience any difficulty ⅛ ascertaining from the petition where they have fenced the streets, and if they have any defense can be prepared by the allegations of the petition to make it.

¶5 The judgment is reversed, and the cause remanded.