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STATE OF GEORGIA
JANET D. MCDONALD,
JAMES B. STEGEMAN,
PLAINTIFFS CIVIL ACTION
FILE NO: 07CV11398-6
V
Plaintiffs filed their Verified Complaint October 26, 2007 due to an on-going
dispute with the named Defendants. In support of Plaintiff’s Motion, they show the
following:
I. Plaintiff’s Property
Georgia Power has refused to address Plaintiff’s claim that the Easement
agreement does not pertain to Plaintiff’s property. Nowhere does the easement agreement
or the 1937 map show that Plaintiff’s property is included in the agreement.1
To the contrary, Plaintiffs have attached a regular sized copy of the Easement
Agreement and an enlarged copy of the agreement so that it can be easily read. Plaintiffs
have also attached their Property Tax Results and a copy of the Property Map as shown
by DeKalb County. See Exhibit 1.
1
The facts clearly show that Georgia Power did not have an easement at 821 Sheppard
Road. Any reference Plaintiffs make about an easement and their property is made only to avoid
confusion and to avoid Plaintiffs continually stating that Georgia Power did not have an
easement agreement for their property and for the sake of argument only.
The 1937 Easement shows the following description: “… in Land Lot Number
73-74 of the 15th District …”
The 1941 Easement shows the following description: “ … in Land Lot Number 37
& 74 of the 18th District…”
Plaintiffs property description shows the following: Land Lot Number 73 of the 18th
District.
Plaintiffs believed they were negotiating with Ms. Huddleston about the easement
issue, and it would be a matter for the Courts before the August 2007 cutting took place.
Georgia Power used State Patrol Troopers by making false statements about Mr. Goff’s
life being threatened and “proper legal documents” to do so even though DeKalb County
Police, Sheriff’s Deputy and Code Enforcement had determined that there was an
easement violation.
Georgia Power denies and would have this Court believe that Senior Troopers of
State of Georgia Department of Public Safety falsely swore their statements in an internal
investigation of the August incident at Plaintiff’s home. Response to ¶¶s 54, 55: “… that
Exhibit H … speaks for itself …” are inconsistent with their response to ¶¶s 65, 66 which
concerns Matt Goff and what Matt Goff represented to State Troopers: 65: “…denies…”;
66: “… Georgia Power admits that Matt Goff conveyed to Georgia State Troopers that in
2004… Plaintiff McDonald… would get her gun…” The facts clearly show that at the
2004 cutting, there was an Officer on the scene, should such a threat had been made,
there would have been an arrest or a Police report in the least.
In recent Discovery requests from Defendants to Plaintiffs, Plaintiffs provided the
other Senior Trooper’s statement on the incident in which Senior Trooper Mathis clearly
states that Matt Goff told him “… that he had met with the homeowner approximately
one month ago and was …” “.. also advise us that Georgia power had obtained the legal
paperwork to perform the job.” Matt Goff had never been threatened by Plaintiffs and
Georgia Power had not acquired “legal paperwork” which could only mean a Court Order
which is what the Troopers told Plaintiffs Georgia Power said they had.
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Plaintiffs have endured a dispute with Georgia Power and have been without the
assets to hire legal counsel to protect their Rights. Plaintiffs are still without the funds for
an attorney and filed this civil action Pro Se against their will and better judgment, but
the violations of Plaintiff’s Rights and property must end.
There is no reference to what information, where it came from, who the individuals were
and further states: “without knowledge or information sufficient…” as shown in the
following fifty paragraphs: 1, 2, 5, 6, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 31,
32, 33, 34, 35, 36, 37, 40, 41, 42, 43, 44, 45, 46, 47, 54, 78, 84, 85, 89, 91, 92, 100, 101,
103, 104, 105, 110, 111, 112, 113, 124, 127, 128.
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The only record attached to the Verified answer is one of the Easement agreements
March 17, 1941, the Easement agreement dated May 4, 1937 was not included, both
agreements had been provided to Plaintiffs by Georgia Power and Ms. Huddleston.;
Ms. Huddleston’s letter to Plaintiff Stegeman stated that Georgia Power had an
Easement Agreement with the previous owner; Plaintiffs challenged that statement, Ms.
Huddleston changed her statement from “previous owner” to “Dr. Wells”, and provided
the May 4, 1937 and March 17, 1941 agreements, neither of which show any definite
reference to Plaintiff’s property.
In the Magistrate Hearing of September 2007 at which Ms. Huddleston was
present, Georgia Power’s attorney told the Judge that the pole2 had been in place since
“1941-42”. Georgia Power’s Counterclaim, pg. 31 ¶9 states “… maintained and utilized
its easement in an uninterrupted, open notorious manner for over twenty years”. The pole
has not been in the same place for twenty years, this is evidenced by the inspection
plaque and the size of Plaintiff’s trees cut and addressed in the complaint. This is a falsely
sworn statement. Plaintiffs have had an on-going dispute with Georgia Power which was
not refuted at the Magistrate Hearing.
Plaintiffs have been unable to find one pole on Sheppard Road that has been in
place for 20 years. Further O.C.G.A. §44-9-40 shows that 20’ is the maximum easement
in Georgia, every pole on Sheppard Road is in violation. Georgia Power claims the they
have a right to keep clear another 15’ around the pole. Should the pole have been placed
in accordance with the 1937 map showing pole locations at 5’2” and add the 15’ Georgia
Power claims to have a right to clear for their lines and poles, it comes up to 20’ as stated
in the statute.
O.C.G.A.§44-9-40
“(a) The superior court shall have jurisdiction…”
“(b) When any person or corporation of this state … ingress,
and egress not to exceed 20 feet in width over and across the
property of the private person or corporation …”
2
In reference to the pole located at 831 Sheppard Road
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Defendant’s Answer and Counterclaim, pg. 38 ¶¶s 34, 35 again claims twenty
years. The following paragraphs and pages show that they illegally took the land and that
the Easement agreements never pertained to Plaintiff’s property: ¶34 “ … Georgia Power
has acquired a prescriptive easement”; ¶39 “… has a prescriptive easement by adverse
possession …”
Georgia Power’s response to complaint ¶¶’s 15-22, ¶24, ¶28: “without knowledge
… they can neither admit nor deny” cannot be a true statement as AT&T rents pole space
from Georgia Power, AT&T had a new pole erected in order to cross the street where the
1937 map shows a pole is to be placed; the result of which are none of AT&T’s lines
cross Plaintiff’s property. Georgia Power would have one believe that AT&T did not
inform them of DeKalb Police, Sheriff’s Deputy, and Code enforcement’s determination
that easement had been violated. AT&T had already run and attached their new line to all
of Georgia Power’s poles along Sheppard Road from the direction of Rockbridge Road
stopping at the corner of Sheppard Road and Sheppard Court waiting for Plaintiff’s trees
to be cut in order to run the lines across Plaintiff’s property. When AT&T was told there
was an easement violation they coiled the loose end of the line up at the pole on the
corner of Sheppard Road and Sheppard Court where it stayed for two months while
AT&T waited to see what Georgia Power was going to do.
O.C.G.A. §16-10-71.
(a) A person to whom a lawful oath or affirmation has been
administered or who executes a document knowing that it
purports to be an acknowledgment of a lawful oath or
affirmation commits the offense of false swearing when, in
any matter or thing other than a judicial proceeding, he
knowingly and willfully makes a false statement.
Response to ¶44 Georgia Power states: “ that the terms of the deed granting
Georgia Power easement rights over Plaintiffs property require that “[a]ny timber cut on
said land by or for said Company shall remain the property of the owner of said timber.”
One would believe that Georgia Power is stating that they have almost any kind of
easement available except for a “timber easement” which is defined by Black’s Law
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Dictionary Seventh Edition, pg. 529: “timber easement. An easement that permits the
holder to cut and remove timber from another’s property.” One would assume that
Georgia Power is stating that they do not have a “timber easement”, Georgia Power
admitted that timber was cut, but said timber was the property of the owner.
In Plaintiff’s attempt to understand the statement, they came up the following
meanings of “timber”:
See:
TIMBER -General term applied to forests and their products.
-Sawed lumber more than 4 by 4 inches in breadth and
thickness.3
Tim-ber5:
n. 1. a. Trees or wooded land considered as a source of wood.
b. Wood used as a building material; lumber.
2. a. A dressed piece of wood, especially a beam in a
structure.
b. Nautical A rib in a ship's frame.
3. A person considered to have qualities suited for a particular
activity: That trainee is executive timber.
Timber:6
Definition: That sort of wood which is proper for buildings
or for tools, utensils, furniture, carriages, fences, ships, and
the like; usually said of felled trees, but sometimes of those
standing. Cf. Lumber,
Definition: The body, stem, or trunk of a tree.
Definition: A single piece or squared stick of wood intended
for building, or already framed;
3
A Complete LOGGING AND TIMBER HARVESTING GLOSSARY Portions Made
Available to Forestry at About by the U. S. Department of Labor
4
http://www.wordwebonline.com
5
http://www.thefreedictionary.com/
6
http://ardictionary.com/Timber/4067
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Plaintiffs agree that Georgia Power has destroyed trees that are over 20 years in
age and/or that are large enough to be used for building material. Plaintiff’s trees could
not be the size they are had Georgia Power’s pole continuously been in the same location
for 20 or more years. Besides, mandatory inspections are done to all wooden poles, at the
time of inspections a metal plaque is attached to the pole to show the inspection date.
The pole at the 831 property lacks inspection plaques going back 20 years.
III. Easements/Condemnation
Georgia Power admits to having attorneys on staff for land and easements and
knows that such disputes are for determination made only by a Superior Court Judge.
Georgia Power further has full knowledge of condemnation and the procedures thereof,
ignoring Georgia statute, they illegally took Plaintiff’s property, and violated easement
agreements with other property owners of Sheppard Road.
Jackson Electric Membership Corporation v. Echols, et., al., addresses an
easement executed in August 1941 very similar except in the instant case there was no
easement agreement and Plaintiffs also have possession of the Original 1937 map that
shows where the poles were to have been placed.
See the following:
Jackson Electric Membership Corporation v. Echols, et., al.,
1951.GA.484 VERSUSLAW, 66 S.E.2d 770, 84 Ga. App. 610
Affirmed:
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the work thereon for a considerable period of time operated to
fix and determine this feature of the contract. Gaston v.
Gainesville &c. Ry. Co., 120 Ga. 516(1) (48 S.E. 188).”
See also Bibb County v. Georgia Power Co., 241 Ga.App. 131, 525 S.E.2d 136
which was Reversed in part and Affirmed in part. In arguing summary judgment, the
parties focus first on the validity of a 1941 agreement between Bibb County and Georgia
Power :
Bibb County v. Georgia Power Co., 241 Ga.App. 131, 525
S.E.2d 136 VERSUSLAW (Ga.App. 11/10/1999)
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At [18] “To construe the original easement in any other
manner would be to authorize the [utility] to eventually take
all the [landowners'] land if the necessities of their business
dictated, without requiring the payment of any additional
damages or compensation to the [landowners] no matter how
great [the landowners'] losses might be…” “Certainly the
[landowners] did not intend to convey to the [utility] blanket
authority to take any and all their land whenever it might suit
the convenience or necessity of the [utility],…”
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The Courts have consistently held that once an easement agreement is made, it
cannot be altered, see also Herren v. Pettengill, 273 Ga. 122, 273 Ga. 122, 538 S.E.2d
735, 538 S.E.2d 735 (Ga. 11/13/2000) Affirmed:
Herren v. Pettengill, 273 Ga. 122, 273 Ga. 122, 538 S.E.2d
735, 538 S.E.2d 735 VERSUSLAW (Ga. 11/13/2000) At [9]:
“Because the owner of the servient estate cannot substantially
alter or relocate an easement without the consent of the owner
of the dominant estate, we affirm.”
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At [16]: “… In Mosteller Mill … found that the "nonspecific
and undefined" easement as set out in the condemnation
petition conveyed "no idea of the extent of the contemplated
invasion" and failed to describe sufficiently the interest being
taken. 271 Ga. App. at 288-289 (1).”
See McMahon v. Hines, 298 Ill. App. 3d 231, 236, 697 N.E.2d 1199
(1998).:
“The power company's rights are not, however, unlimited. The power
company must not inflict unnecessary damage to the land nor may its
exercise of its right unreasonably increase the burden placed on the servient
tenement.” Kell, 170 W.Va. at 17, 289 S.E.2d at 454.
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The Kell court further stated:
“"The power company cannot indiscriminately wreak havoc
upon the owner's land and its appurtenances in order to
exercise its limited right to protect its lines from danger and
hindrance from overhanging branches and trees." (Emphasis
added.) Kell, 170 W.Va. at 20, 289 S.E.2d at 456.”
In Stirling v. Dixie Electric Membership Corp., 344 So. 2d 427 (La. App.
1977), the plaintiffs filed a lawsuit against the defendant electric company
for damage to their trees, shrubs, and plants. The Court held:
“The vast majority of trees and shrubs were not a threat to the
electrical line nor [did the defendant] claim that they were."
Stirling, 344 So. 2d at 429.
In Marshall v. Georgia Power Co., 134 Ga. App. 479, 214 S.E.2d 728
(1975), the plaintiff sued the defendant for cutting down Christmas trees on
his property located within an easement granted to the defendant in 1925 by
the plaintiff's predecessor that gave the defendant authority to trim and
remove trees and underbrush … Marshall, 134 Ga. App. at 479, 214 S.E.2d
at 730:
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In Moore v. Choctawhatchee Electric Co-Operative, Inc., 196 So. 2d 788
(Fla. App. 1967 ), the plaintiffs filed a lawsuit against the defendant after it
cleared a large strip of the plaintiffs' land. Moore, 196 So. 2d at 789.
See also Crowell v. Florida Power Corp., 438 So. 2d 958, 959
(Fla. App. 1983) concluding that:
“even assuming the defendant had consent to enter upon the
plaintiff's property, a genuine issue of material fact existed as
to whether the defendant violated the boundaries of the
consent by trimming the trees in the manner it did”; Hanner v.
Duke Power Co., 34 N.C. App. 737, 738, 239 S.E.2d 594, 595
(1977)
Although the instant case is different than most of those detailed above because, in
those cases, the utility company was specifically granted the right to cut down or remove
trees in addition to the right to trim, the cases are nonetheless instructive on the issue of
when conduct falls within or exceeds the scope of an easement based on the specific
language of the relevant easement.8
V. Contract Construction
Plaintiffs and Defendants have had an Easement dispute for several years,
acknowledged before the Magistrate Judge September 2007. Although the Plaintiffs have
8
United States Court of Appeals, Second Division Appeal from the Circuit Court of Cook
County, IL Robert J. Duresa and Bonnie S. Duresa, Plaintiffs-Appellants, v. Commonwealth
Edison Company, a/k/a/ COM ED, Defendant-Appellee; JUSTICE BURKE delivered the
opinion
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never had the money to hire an attorney to enforce their Rights concerning their property
and Georgia Power has continually taken advantage of that fact, Plaintiffs continually
protested to Georgia Power.
Georgia Power has past experience with easement disputes and knows that
easement issues are governed by the rules of contract construction. Irvin v. Laxmi, Inc.,
266 Ga. 204, 205 (467 SE2d 510) (1996).
See
Municipal Electric Authority of Georgia, et., al. v. Gold-
Arrow Farms, Inc., et., al.; Georgia Power Company v. Gold-
Arrow Farms, Inc., et., al.; Interstate Fibernet, Inc. v. Gold-
Arrow Farms, Inc., et., al. A05A1400, A05A1401,
A05A1402. COURT OF APPEALS OF GEORGIA 276 Ga.
App. 862; 625 S.E.2d 57; 2005 Ga. App. LEXIS 1319; 2005.
Affirmed in part, reversed in part and remanded in part.
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to comprehend or distinguish; of doubtful purport; open to
various interpretations.” (Citation and punctuation omitted.)
Early v. Kent, 215 Ga. 49, 50 (108 SE2d 708) (1959).”
VI. Default
Service was perfected November 2, 2007. Having not received a responsive
pleading on December 5, 2007, Plaintiff McDonald contacted the Clerk for the
Honorable Judge Becker and was told that there had been no responsive pleading
filed. Neither the Plaintiffs nor this Court received Defendant’s responsive pleadings
within the 30 days mandated by statute. See O.C.G.A. §9-11-12:
OCGA §9-11-12
(a) When answer presented.
“A defendant shall serve his answer within 30 days after the service
of the summons and complaint upon him…”
Further, Defendants failed to Motion to open default and or pay the costs to open
default, this case therefore stands in default under O.C.G.A. §9-11-55:
OCGA § 9-11-55
“When an answer has not been filed within the time required the
case automatically becomes in default.”
Plaintiffs have neither waived their Right to have the Defendant’s Answers
stricken nor their Right to Default Judgment. See the following:
Ewing et., al., v. Johnston9 175 Ga. 1221 (334 S.E.2d 703)
VERSUSLAW, 1985:
9
Plaintiffs were unable to find exact cases to cite and realize the difference in circumstances
between Ewing v. Johnston and the instant case.
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defendant has to file an answer begins to run from the date of
service and not from the filing of the return.”
See also:
PRAYER
Plaintiffs have shown the following: Georgia Power had full knowledge that there
was no easement concerning Plaintiff’s property, full knowledge of the dispute and had
decided to ignore Georgia statutes and took matters into their own hands.
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Plaintiffs have shown this Honorable Court that the Verified Answers are
insufficient, and unresponsive, and falsely sworn to. Plaintiffs have further shown that
the Counterclaim filed by Defendants requests relief which cannot be granted.
Georgia Power filed an untimely answer the results of which are they are in
Default, and they have failed to Open Default and/or pay the fees to Open Default.
Plaintiffs Pray that this Honorable Court will consider the foregoing paragraphs
and Grant their Motion To Strike Defendant’s Verified Answers.
BY: ____________________________
JANET D. MCDONALD, Pro Se
821 Sheppard Road
Stone Mountain, GA 30083
(770) 879-8737
BY: ____________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Road
Stone Mountain, GA 30083
(770) 879-8737
CERTIFICATE OF SERVICE
I Certify that I have this 5th day of March, 2008 served a copy of the foregoing
PLAINTIFF’S MOTION and BRIEF IN SUPPORT OF PLAINTIFF’S MOTION TO
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STRIKE DEFENDANT’S ANSWERS upon defendants through their attorney on file via
U.S.P.S., First Class mail, proper postage pre-paid as follows:
Troutman Sanders, LLP
Brian P. Watt
5200 Bank of America Plaza
600 Peachtree Street
Atlanta, GA 30308-2216
______________________________
JANET D. MCDONALD, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-8737
_____________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-8737
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