Motion To Strike Georgia Power's Verified Answer and Counterclaim

Case 1:08-cv-01971-WSD Document 9-4 Filed 07/11/2008 Page 1 of 29
IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA
JANET D. MCDONALD,
JAMES B. STEGEMAN,
PLAINTIFFS CIVIL ACTION
FILE NO: 07CY1139&6
V
GEORGIA POWER COMPANY, et, al.,

DEFENDANTS
PLAINTIFF'S MO TION TO STRIKE DEFENDANT'S ANSWERS
COMES NOW Plaintiffs in the above listed Civil Action and file their MOTION
TO STRIKE DEFANDANT'S ANSWERS_ Plaintiffs file their Brief In Support of
Motion To Strike Defendant's Answers contemporaneously
Respectfully submitted th is 5" day of March, 2008 .
BY: 60~1
J T D. MCDUNA W, Pro Se
. 821 Sheppard Road
• Stone Mountain , GA 30(}83
~` 770) 879-8 737
l~ f
BY:
B . STEGF 1, Pro Se
Stone Mountain, GA 3008 3

(770) 879-8737
Fifed ®rDay o 2D00

Linda Carter
Clek k of Superior Cou rt
. ..#f It
CERTIFICATE OF SERVICE
I Certify that I have this 5d' day of March, 2008 sa ved a copy of the foregoing
PLAINTIFF'S MOTION and BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO
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 Pinza
600 Peachtree Street
Atlanta, GA 30308-2216
,NET D. MCDONALD, fro Se

821 Sheppard Rd
Stone Mountain. GA 30083
(774) 879-8737
1ME$ Pro SC
821 Sheppard Rd
Stone Mov ntaiH, GA 30083
(770) 879-8737
Fileday of; p~
Candor Carter
Clark of Superior Court
.j
0
IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA
Y JANET D. MCDONALD,
JAMES B. STEGEMAN,
PLAINTIFFS CIVIL ACTION
FILE NO: U7G'v1139&6
V
GEORGIA POWER COMPANY, et, al.,

DEFENDANTS
P +
S BRIEF IN SUPPORT OF PLAINTIUFF"S
MOTION TO STRIKE DEFENDANT'S ANSWERS
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. Plaintiffs Property
Georgia Power has refused to address Pla intiffs claim that the Easement
agreement does not pertain to Plaintiffs property. Nowhere does the easement
agreement or the 1937 map show that Plaintiffs property is included in the agreement .'
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 Pla intiffs make about an easement an d their property is made only to
avoid confusion and to avoid Plaintiffs continually stating that Geor gia Power did not have an
easement agreement for their pro perty and for the sake of argument only.
The 1937 Easement shows the following description: "_ . . in Land Lot Number
73-74 of the 1 5" District . . ."

The 1941 Easement shows the follow ing description: " . . . in Land Lot Number 37
& 74 of the 18'h District . . ."
th
Plaintiffs property description shows the following: Land Lot Number 73 of the 18
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 . GofP s
life being threatened and "}roper legal documents" to do so even though DeKaIb County
Police, Sheriffs 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 re sponse to ¶¶s 65, 66 which
concerns Matt Golf and what Matt Gaff represented to State Troopers : 65 :
". . .denies ., ."; 66: ". . . Georgia Power admits that Matt Go ff 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, s hould such a threat had
been made, there would have been an arrest or a Police report in the least .
In recent Discovery requests from Defendant s 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 .
II. Verified Answers

Several issues of the complaint list the only persons) at Georgia Power that could affirm
or deny an allegation, such as Matt Goff or Nancy Huddleston . Defendant's answers
were evasive and or non-responsive, stating: ". . . is not within the personal knowledge o f
any one individual at Georgia Power, .: '; " . . .has been assembled by authorized
employees and counsel . . . "; " . . . from records and files . . ."; "from interview s of
appropriate employees . . ."; ". . .are true and correct to the best of his knowledge,
information and belief."
See bearing v. State of Ga., 243 Ga. App. 195, 201 (1) (532
SE2d 7 5 1) LAWSK ILLS (2000) holding that a fal se
verification by oath constitutes perjury
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, 7 8, 84, 85, 89, 91, 92, 1 00, 101,
103 , i04, 105, 110, 1 i 1 , 112, 113, i24, i27, 12$.
III. False Swearing/ Perjury

Therefore, Georgia Power has continually made false representation concerning
Plaintiff's property . Further, Georgia Power has falsely sworn to the facts concerning
Plaintiff's property. This shows that Georgia Power knowingly and intentionally falsely
swore to the facts in their Verified Answers and Counterclaim, and why Georgia Power
employed liable in order to have State Patrol Troopers come to Plaintiff's property to
once again trespass, violate and destroy Plaintiffs property .
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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, ] 937 and March 1 7, 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 19 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 .
Q.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 I¶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 Plaintiffs property : 134 " . . . 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, T2$ : "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
informm them of DeKa1b 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 Plaintiffs
trees to be cut in order to run the tines across Plaintiffs 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 .
Q.C.G.A. §16-1Q-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 144 Georgia Power states : " that the terms of the deed granting
Georgia Power easement rights over Plaintiffs property require that "[n]ay 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
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eas ement available except for a "timber easement" which is defined by Black's Law
Dictionary Seventh edition, pg. 529 : "timber easement . An easement that permit s the
holder to cut and remove timber from another's property." One would as sume 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
Noun : timber timbu(r) 4

1 . The wood of trees cut and prepared for use as building
material - lumber
2. A beam made of wood
Tim tiers :
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 sip's frame .
3 . A person considered to have qualities suited for a particular
activity: That trainee is executive timber .
Ti mber:6
Definition : That sort o f wood which is proper for buildings
or for tools , utensils, firniture , 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 fi arced ;
3 A Complete LOG GING AND TIMBER HARVESTING GLOSSARY Portions Made

Available to Forestry at About by the U . S . Department of Labor
4 http :l/www .wordwebonline .com
5 http ://www.thefreedictionary.com/
6 http ://ardictionary .com/Tiamberl4067
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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 fiill knowledge of condemnation and the procedures thereof,
ignoring Georgiaa statute, they illegally took Plaintiff's property, and violated easement
agreements with other property owners of Sheppard Road .
Jackson E lectric Membersh ip Corporation v . Echols, et., at., 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:
At [ 1 I ]: " . . .in August 1941 , . . . the right to enter upon the

described lands . . ."to place , construct, operate, repair,
maintain, relocate and replace thereon and in or upon all
streets, . . ., and to cut and trim trees and shrubbery to the
extent necessary to keep them clear of sa id electric lines or
system . . .." By this instrument no particular location of the
right-of-way or easement was specified."
At [13]: "White the easement relied upon by the pla intiff did
not speci fically designate the location or the extent of the line
or systemm of lines to be erected on and over the defendants'
lands, the subsequent erection of a line and the termination of
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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) ."
"Having thus established the location of the line . . _ intended

to be permitted by the easement, the plaintiff was thereafter
precluded, . . . to enter upon the defendants' lands and take
additional portions thereof for the erection of an extension or
extensions of the line or system without first obtaining from
the defendants a further or additional easement or by a proper
condemnation proceeding . fa6: "see Martin v. Seaboard Air-
Line R., 139 Ga. 807 , 809 (1) (77 SE 1060) (1913) g(grantee
confined to land used in first establishing easement}"
"To construe the original easement in any other manner

would be to authorize the plaintiff to eventually take all the
defendants' hand . . . no matter how great the de fendants' losses
might be as a result thereof. This was clearly not the intention
of the parties . . . did not intend to convey to the plaintiff
blanket authority to take any and all their land whenever it
might suit the convenience or necessity of the plaintiff, . . ."
At [14) : ". . . the plaintiff had no right under the original

easement to use the defendants ' lands for the purpose of
erecting this additional line or system . . . overruling the
motion for a new trial on the special grounds thereof."
See also Bibb County v. Georgia Power Co ., 241 Ga. Agp. 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 ., 24 1 Ga. App. 131 , 525
S.E.2d 136 VERSUSLAW (Ga.App. 11 /1011999)
At [17] : "Once so established , the easements could not be

changed without Georgia Power first obtaining from the
landowners a further or additional ea sement , whether by
condemnati on or otherwise. *fn6 Jackson Electric
Membership Corp . v. Echols *fn7 explained the
consequences of a contrary holding:"
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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], . . ."
At [19] : "Once fixed by actual placement of the poles,

indefinite easements do not "float" according to the business
necessities of the utility ."
At [21] : "Georgia Power did not retain records showing the

placement of poles from the early time periods;. . . "
At j29] : "But altering, repairing, and extending the power

lines do not encompass the right to move the fixed poles
several feet in one direction ; otherwise, by incremental
adjustments, Georgia Power could eventually take over the
entire property, a result not contemplated by such language ."
At [321: "But if pursuant to easements with the previous

landowners Georgia Power had located the poles on the land
. . . these sections would appear to violate the Georgia
Constitution provision prohibiting the taking of private
property for public purposes w ithout just and adequate
compensation being first paid . *fn19 Georgia Power Co . v.
City of Macon" ""An easement is a property right, of which
its owner cannot be deprived without just and adequate
compensation . *fn2 i Absent the proper exercise of the power
of condemnation , the underlying landowner has no power
unilaterally to alter the path of an easement , even if the
alternate route is "gold-plated .""
At [34] : "6. After entry of the two summary judgment orders,

the trial court sua sponte amended its second order to add that
Georgia Power had a "liberty interest" in the slight movement
Of its Does and facilities on the i'lffl]t-of- wav. which iibenv
interest was DTOI eCie (1 nV ill e r ourteenin tirrienament. ri o
16Ly a1 or IaCilla.l Slli[lOI'1N SUDDOE"[S Si1Ct1 a l, 0IIC1US1011 . . .
-Q-
The Courts have cons istently 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) Affi rmed :
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 sub stantially
alter or relocate an ea sement without the consent of the owner
of the dominant estate, we affirm ."
At (131 : " . . . once the location becomes fixed , the same rule
controls relocation issues , so long as the grant conta ins no
conditions or reservations . *fn4 " at [241: "*fn4 See William
B. Johnson, Annotation, Locating Easement of Way Created
by Necessity , 34 A.L.R. 4th 769 (1985); Annotation, Locating
Easement of Way of Neces sity, 68 A.L .R. 528 (1930) ."
At [15]: " . . . Additionally, our courts have held that

easements for utilities and railroads are confined to their
original location, and, in order to alter, expand , or move them,
consent or additional easements must be obtained . *fn9 at
[29] : "*fn9 Martin v . Seaboard Air-Line R ., 139 Ga . 807 (77
SE 1060) (1913) ; Bibb County v. Georgia Power Co ., 241
Ga. App. 131, 133- 134 (525 SE2d 136) (1999) ; Jackson Elec.
Membership Corp . v. Echols, 84 Ga. App. 610 (66 SE2d 770)
(1951 )."
"A grant of an easement is to be construed in accordance with the rules applied to

deeds and other written instruments. In the construction of instruments creating
easements, it is the duty of the court to ascertain and give effect to the intention of the
parties."7
Orr et., al. v. Georgia Transmission Corporation, 633 S.E. 2d
564 , 280 Ga . App. 251 , 6 FCDR 1885, 2006 which held :
At 113] : ". . . is entitled to have an accurate , definite

description of the property . . . Without this, the owner of the
property cannot know what port ion o f his land is requ ired, . . .
7 28A C .J. S. Easements §57, at 233 (1996) .
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cannot know the precise boundaries of the land so as not to

trespass on property not acquired ."
At ( 16]: " . . . In Mosteller Mill . . . found that the "nonspecific

and undefined" easement a s 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)."
At [1 7]: ". . . In Dorsey v. Dept. of Transp ., 248 Ga. 34 (279

SE2d 707) (1981), the Supreme Court of Georgia considered,
. . . the effect of an inadequate descript ion of the property or
interest taken. . . . which does not conform . . .because it does
not describe the nature or duration of an easement "cannot
vest title to the land in the condemnor . " 248 Ga . at 37."
See McMahon v . Hines, 298 Ill. App. 3d 231 , 236 , 697 N .E.2d 1199
(1998) . :
"Court s tend to strictly construe easement agreements so as

to permit the greatest possible use of property by its owner ."
McMahon, 298 Ill . App. 3d at 236-37 . "The extent of an
easement created by express grant depends on the terms of
the grant. If it is specific in terms, it is decisive of the limits
of the easement ." R. Ward, Extent of Easement Over Servient
Estate, 33 POF 2d 669, 677 (1983).
See Consolidated Cable Ut ilities , Inc . v. City of Aurora, 108

111 . App. 3d 1035, 1041 , 439 N .E.2d 1272 (1982) .:
"In other words , "[i]f the language of a grant is clear and free
from doubt, such language i s not the subject of interpretation ,
and no resort to extrinsic facts and circumstance s may be
made to modify the clear terms of the grant ." Extent and
Reasonableness of Use of Private Way in Exercise of
Easement Granted in General Terms, 3 A.L.R.3d 1256, 1260
(1965) .
IV. Scope Of Easement
"The power company's rights are not, however, unlimited . The power
company must not inflict unnecessary damage to the land nor may its
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exerc i se of its right unreasonably increase the burden placed on the servient
tenement." Kell, 170 W.Va. at 17 , 289 S.E.2d at 454.
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 major ity of trees and shrub s were not a threat to the
electrical line nor [did the defendant) claim that they were ."
Stirling, 344 So. 2d at 429 .
According to the Stirling court : "it would be more

sympathetic to defendant 's cause had any effort been made to
minimize the damage or even consider the use of mechanized
equipment . *** Plaintiffs' carefully landscaped front yard was
accorded no greater consideration than an ordinary fence
row." Stirling, 344 So. 2d at 429.
As such, the Stirling court awarded damages to the plaintiffs."

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 withi n an easement granted to the defendant in 1925 by
the plaintiffs 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:
The Marshall court concluded: that the defendant had "the

right to clear the trees, but did not have the right to damage
other lands of the plaintiffs in do i ng so ." Marshall , 134 Ga .
App. at 481 , 214 S.E.2d at 730 .
In this regard, the court stated that "[w]hile the easement

grants the right of entry , it does not provide for the
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indiscriminate violation of plaintiffs property rights in so

doing." Marshall , 1 34 Ga. App. at 481, 214 S .E.2d at 731 .
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 .
The Moore court noted that:

"even a ssuming the defendant had an easement over the
property , . . . easement clearly authorize[d] the cutting and
trimming . . . only to the extent necessary to keep them clear
of said electric line ." Moore, 196 So. 2d at 789.
According to the court , "'[s]uch language does not in and of
itself vest i n defendants as a matter of law the right to clear a
30-foot swarth , which was the width of the clearing as alleged
and proved by plaintiffs." 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
plainti ffs property, a genuine issue of material fact ex isted as
to whether the defendant v iolated 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
g 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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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
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 i ssues 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 Georg ia, et., al . v. Gold-
Arrow Farms, Inc., et., al . ; Georgia Power Company v. Gold-
Arrow Farms, Inc., et., al.; Interstate F ibernet, Inc. v. Gold-
Arrow Farms , Inc., et., al . A05A1400, A05A1401,
AOSAi402 . COURT OF APPEALS OF GEORGIA 276 Ga .
App . 862; 625 S .E.2d 57 ; 2005 Ga . App. LEXIS 1 319 ; 2005 .
Affirmed in part , reversed in part and remanded in part .
At [ 11 ] : " . . . Generally, this presents a question of law for the

court, unless the language presents an ambiguity that cannot
be resolved by the rules of construct i on. Hardman v.
Dahlonega-Lumpkin County Chamber of Commerce , 238 Ga .
551 , 553 (233 SE2d 753) (1977) ; Imerys Marble Ca v. J . M.
Huber Corp., 276 Ga . 401, 403 (577 SE2d 555) (2003) ."
"The card inal rule of construction is to ascertain the intent of

the parties. Irvin, 266 Ga. at 205."
""Where the contract terms are clear and unamb iguous, the
court will look to that alone to find the true intent of the
parties ." Southern Fed. Sav. & Loan Assn . &c. v. Lyle, 249
Ga. 284, 287 (290 SE2d 455) (1982) ; Park `N Go of Ga . v. U.
S. Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500) (1996).
To determine the intent of the parties, all the contract terms
must be considered together in arriving at the construction of
any part, and a construction upholding the contract in whole
and every part is preferred. Cole v. Thrasher, 246 Ga. 683 ,
684 (272 SE2d 696) (1980); McCann v . Glynn Lumber Co .,
199 Ga. 669,674 (34 SE2d 839) (1945) ."
-1 4 -
At [12] : " . . .An "[a]mbiguity is defined as duplicity,

indistinctness, an uncertainty of meaning or expression used
in a written instrument, and also signifies of doubtful or
uncertain nature; wanting clearne ss or definiteness; difficult
to comprehend or distinguish; of doubtful purport; open to
variou s 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 rece ived Defendant 's responsive pleadings
within the 30 days mandated by statute . See O.C.G.A . §9-11-12 :
OCGA 49-11-12
(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 ha s 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 :
at [13] : "Several issue s . . . When does the time begin to run

in computing the 30-day period a defendant has to answer
under OCGA § 9-11-12 (a)?"
9 Plaintiffs were unable to find exact cases to cite and realize the difference in circumstances
between Ewing v. Johnston and the instant case .
-15-
at [14] : "(a) "A defendant shall serve his answer within 30

days after the service of the summons and complaint upon
him, unless otherwise provided b y s tatute." (Emphasis
supplied .)" . . . "We conclude that the 30 days within which a
defendant has to file an answer begins to run from the date of
service and not from the filing of the return ."
At 115) : "(b) Because time ran from the actual date of

service, default occurred on the 31st day following service"
. . . " "The filing of the answer by defendant within 15 days
following the default in this ca se, without payment of costs ,
does not alone open the default . Hazzard v . Phillips , 249 Ga.
24,25 (287 S .E.2d 191)."
At [ 16] : "However, in Muscogee Realty Dev. Corp . v.

Jefferson Co., 252 Ga . 400 (314 S.E.2d 199), . . . in default for
filing an answer on the 31st day follow ing service, and the
plaintiff apparently did not notice the default , . . . In reversing
. . ., the Supreme Court held that . . . trial Judge abused his
discretion because "the plaintiff allowed the case to proceed
to trial without moving that the defaulting defendants '
answers be stricken and/or for a judgment on the pleading s
because of the late filing of the answer s. .. " Id. p. 402 ."
See also :
Fred Chenoweth Equip . Co. v. Oculus Corp., 254 Ga . 321

(328 SE2d 539) (1985) . "The default judgment merely
determined that [Evens] failed to follow the procedural
requirement that a timely answer be filed . The consequence
of this failure was that judgment was entered against
[Evens]." Chenoweth, supra at 323 .
-16-
D .~
PRAYER
Plaintiffs have shown the following: Georgia Power had full knowledge that there
was no easement concerning Plaiatitrs property, full knowledge of the dispute and had
decided to ignore Georgia statutes and took matters into their own hands .
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.
Respectfully submitted this Sm day of March, 2008
BY: ~.
JANET D. MCDONALD, Pro Se
821 Sheppard Road
Stone Mountain, GA 30083
/-7(770) 879-8737

(770) 879-8737
Fted9bay o 12f
Linda Carter
Clerk of Superior Court
-17-
.1
CERTIFICATE OF SERVICE
I Certify that I have this 5P day of March, 2008 served a copy of the foregoing
PLAINTIFF'S MOTION and BRIEF IN SUPPORT OF PLAINTIff'S MOTION TO
STRIKE DEFENDANT'S ANSWERS capon defendants through their attorney on file via
U.S.P.S., First Class mail, proper postage pm-paid as follows:
Troutm an Sanders, LLP
Brian P. Watt
5200 Bank of A merica Plaza
600 Peachtree Street
Atlanta, GA 30308-2216
D. MCDUN , Pro Se
821 Sheppard Rd
Mautsin, GA 30083
(770) 879-8737
1TrSLep~rd Rd
(770) 879-8737
RledlL` Qay 0l~

Linda Carter 0& ~"~
Clerk of Superior Court ~
- 18 -
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with 1 9 8 Sit Encryption
Es in c 5c
For additional assistance, contact ( 404 ) 298-4000 .
P roperty Identification P ro p erty Value/

2008 ParcelID 2907302004 Billing Assessment
2007 parcellD 18 OT3 02 X04
Tamable Yew 2007
ZOO-ft Number 0974722
2007 Pin N umber 097472 2 Land Value $46,200
Property Address 621 5HEPPARD RD UNI Building Value $10,600
Property Type Real Estate Misc . Improvement Value $0
Tax District 04 Unincorporated
Total Value $56,800
40% Taxable Assessment $22,720
Own er Information
Jan Ist Owner STEGEMAN JAMES B Information as of 03/04/2008
Co -Owner MCELWANEY IAIVEf M
CAirrent Owner STEGEMAN JAMES B
Co-Owner MCEtwAtrE r 3wXE r H H omestead Exemption
PECIAL
Owner Address 000821 SHEPPARD RD Exemption Type H3DF - S
EXEMPTION FREEZE
STON E MOUNTA IN , GA 3 0083-3642 Tax Exempt Amount $0 .00
Special Billing Address No Special Billing Address in60 rmation
available
" ' CHANGE MAILING ADDRESS7 Other Exempt i on Informat i on
Exemption type
D ee d Informatio n Value Exemption
Warranty Deed $0 . 00
Deed Type Iu nouet
Deed Boolc,[Page 08Z93/ 0641
Plat Book/Page 0000/ OUDO
Tax Information Su mmary

Property Characteristics/
Taxable Year 2007
Sa l es Info rmation
M11111age Rate 0 .0393
NBHD Code 0690-00
Acreage LOT
OeKalb County Tax es Billed $125.98
Zoning Type Sing le Family Residential District - DeK,alb County Taxes Paid $ 125 .98
R10Q
Zoning District R100 DelCalb County Taxes Due $0.00
Year B uilt 1940
Total Taxes Billed View Details $125 .98
Condition Code P -Poor
Quality Grade 015 - AVERAGE Total Taxes paid ;125 . 98
A ir Conditioning N Total Taxes Due $OAO
Fireplaces 0 A penalty of 196 per month will be assessed on any unpaid
Stales i balance for the city of Atlanta Taxes after 911512007
square Footage 1, 143
(Heated Space) Escrow Agency Yes
Basement Area : 0 Sq. Ft- Last Payment
ner~ Date 11/12/2007
% Hsntt Finished 0% Last Payment Amount $62 .99
Bedrooms 2
Bathrooms Full Baths : 1 Prior Years Tax
Half Baths: 0 s :please note the iMortnatbn below may be 2 days
Last Sold date 08/16/1994 old .
Last Sold Price $55.OEIO . OQ DeKalb
Click here to vi ew prop " map County Tax
TAxY r Too(-owed 7otal Paid Total due
A41d16oFUld Prope1iy Data 2007 $125 .98 j125 .98 X0 .00
2006 $125 .84 $125 .84 $0 .00
Property Tax M aili ng Ad dress 2005 $292 .22 $292 .22 $0 .00
2004 #48.0 #48 .00 $0.00
DeKaib County Tax Commissioner 7A03 $0 .00 $0 .00 $0 .00
Collections Division 2O02 $225 .00 $225 .00 $0A0
PO Box 100004
C .J
Decatur, GA 3003 1- 004 Delinquent Taxes/
Tax Sale information
For additional Information on the data above, contact the Property
Appra isal Department at 4 Q 4-37 1-247 1 Tax Sale Fife N umber
F9Fa-G'ED Book/Page
Levy Daft
Sale Date
Delinquent Amou nt Die
For add ition al assista nce, con tact ( 404 ) 298-4000 .

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Case 1:08-cv-01971-WSD Document 9-4 Filed 07/11/2008 Page 1 of 29

IN THE SUPERIOR COURT OF DEKALB COUNTY

GEORGIA POWER COMPANY, et, al.,

PLAINTIFF'S MO TION TO STRIKE DEFENDANT'S ANSWERS

Respectfully submitted th is 5" day of March, 2008 .

Stone Mountain, GA 3008 3

Fifed ®rDay o 2D00

,NET D. MCDONALD, fro Se

IN THE SUPERIOR COURT OF DEKALB COUNTY

GEORGIA POWER COMPANY, et, al.,

Plaintiffs filed their Verified Complaint October 26 , 2007 due to an on-going

73-74 of the 1 5" District . . ."

II. Verified Answers

III. False Swearing/ Perjury

2 In reference to the pole located at 831 Sheppard Road

Defendant's Answer and Counterclaim, pg . 38 I¶s 34, 35 again claims twenty

Noun : timber timbu(r) 4

3 A Complete LOG GING AND TIMBER HARVESTING GLOSSARY Portions Made

At [ 1 I ]: " . . .in August 1941 , . . . the right to enter upon the

the work thereon for a considerable period of time operated to

"Having thus established the location of the line . . _ intended

"To construe the original easement in any other manner

At [14) : ". . . the plaintiff had no right under the original

At [17] : "Once so established , the easements could not be

At [ 18] "To construe the original easement in any other

At [19] : "Once fixed by actual placement of the poles,

At [21] : "Georgia Power did not retain records showing the

At j29] : "But altering, repairing, and extending the power

At [321: "But if pursuant to easements with the previous

At [34] : "6. After entry of the two summary judgment orders,

At [15]: " . . . Additionally, our courts have held that

"A grant of an easement is to be construed in accordance with the rules applied to

At 113] : ". . . is entitled to have an accurate , definite

7 28A C .J. S. Easements §57, at 233 (1996) .

cannot know the precise boundaries of the land so as not to

At ( 16]: " . . . In Mosteller Mill . . . found that the "nonspecific

At [1 7]: ". . . In Dorsey v. Dept. of Transp ., 248 Ga. 34 (279

"Court s tend to strictly construe easement agreements so as

See Consolidated Cable Ut ilities , Inc . v. City of Aurora, 108

IV. Scope Of Easement

The Kell court further stated:

In Stirling v. Dixie Electric Membership Corp ., 344 So . 2d 427 (La . App.

According to the Stirling court : "it would be more

As such, the Stirling court awarded damages to the plaintiffs."

The Marshall court concluded: that the defendant had "the

In this regard, the court stated that "[w]hile the easement

indiscriminate violation of plaintiffs property rights in so

In Moore v . Choctawhatchee Electric Co-Operative , inc ., 196 So . 2d 788

The Moore court noted that:

See also Crowell v. Florida Power Corp., 438 So . 2d 958, 959

At [ 11 ] : " . . . Generally, this presents a question of law for the

"The card inal rule of construction is to ascertain the intent of

At [12] : " . . .An "[a]mbiguity is defined as duplicity,

at [13] : "Several issue s . . . When does the time begin to run

at [14] : "(a) "A defendant shall serve his answer within 30

At 115) : "(b) Because time ran from the actual date of

At [ 16] : "However, in Muscogee Realty Dev. Corp . v.

Fred Chenoweth Equip . Co. v. Oculus Corp., 254 Ga . 321

Respectfully submitted this Sm day of March, 2008

Stone Mountain, GA 30083

RledlL` Qay 0l~

~ -10 .4 221 c53

EAGLE DRIVE 214'--- is~

Print this page for y.;Neco rd s V

Motion To Strike Georgia Power's Verified Answer and Counterclaim

Motion To Strike Georgia Power's Verified Answer and Counterclaim