Goodrich v. Georgia R. & Banking Co.
| Decision Date | 26 April 1902 |
| Citation | 41 S.E. 659,115 Ga. 340 |
| Parties | GOODRICH v. GEORGIA R. & BANKING CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. While, under the Code, an injunction which is purely mandatory in its nature cannot be granted, the court may grant an order the essential nature of which is to restrain although in yielding obedience to the restraint the defendant may incidentally be compelled to perform some act.
2. Where one wrongfully diverts a stream from its natural channel, and thus prevents it from flowing upon the land of a lower proprietor, the court may, at the instance of the latter, grant an injunction to prevent the owner of the land above from diverting the water from its natural course although the effect of the order may be to require the defendant to destroy a ditch, or do other acts necessary to restore the water to its natural channel; and this is true though the diversion of the water was complete at the time the application for injunction was made, when it appears that the same was promptly made, and there was no unnecessary delay.
3. The case, upon its merits, is controlled by the rulings above announced, and the judge did not abuse his discretion in granting the injunction.
Error from superior court, Richmond county; E. L. Brinson, Judge.
Suit for injunction, brought by the Georgia Railroad & Banking Company against Mrs. Margaret M. Goodrich. From an order granting the injunction, defendant brings error. Affirmed.
Henry C. Roney, for plaintiff in error.
Jos. B. & Bryan Cumming, for defendant in error.
This was an application for an injunction in which the Georgia Railroad & Banking Company was the plaintiff and Mrs Margaret M. Goodrich was the defendant. The substance of the allegations of the petition was as follows: The plaintiff had acquired title from the husband of the defendant to two acres of land. The purpose of acquiring title to this land was to obtain a water supply for the use of the plaintiff in operating its railroad. Running through the land thus acquired were two branches or rills, and soon after the land was acquired the plaintiff erected a dam across these branches, which collected the water into a pond, and a pipe conducts the water from this pond to water tanks located at a station on the line of the plaintiff's railroad. These branches have their source in two perennial springs on the land of the defendant at a higher elevation than the pond and the pond is fed and supplied from such springs. The defendant is proceeding to sink a ditch upon her land, which will have the effect to cut off and divert from the pond the supply of water that would naturally flow therein, which will result in the destruction of the pond; and this act on the part of the defendant will result in damages to the plaintiff, which will be irreparable in their nature, and the defendant is unable to respond in damages for the wrong. The prayer of the petition was that the defendant be enjoined from digging the ditch described in the petition, or from any other work on the land of petitioner or her own land which will interfere with petitioner's right to the flow of water from the springs, or either of them, or impair or diminish the supply of water from them, or either of them. Upon this petition the judge granted a temporary restraining order until the application for injunction could be heard. By an amendment the plaintiff alleged that the work upon the ditch described in the petition had progressed so far before the issuance of the restraining order that an order merely restraining the defendant from further prosecuting the construction of the ditch would not give plaintiff the relief to which it was entitled, and prayed that the defendant be enjoined from using the ditch for the purpose of draining the water or for other purposes which would have the effect of diverting the flow of the streams, or either of them, from the pond; that the defendant be enjoined from diverting the streams, or either of them, by means of ditches or otherwise; and that the defendant be enjoined from using the water to which the plaintiff is entitled, and from reducing the height of the water in the pond. After the restraining order was granted, but before the day set for the hearing, on oral application of the plaintiff the judge passed an order authorizing the plaintiff to go upon the lands of the defendant and erect a dam across the ditch which had been constructed so as to cause the water to flow back into its natural channel, and carry it into the pond; the order reciting that this could be done with "very little work," and "without injury to the defendant," and distinctly providing that the plaintiff should be responsible to the defendant for damages, if any, which would result to her from any change in the status which might be made under the order. At the hearing the defendant filed an answer, which set up that the ditch had been completed before the restraining order was granted, and that the same nowhere touches the plaintiff's land; that the springs which furnish water to the pond are wholly upon the land of the defendant, and form no branches or rills, but the water therefrom covers nearly or quite five acres of land, which is valuable for farming purposes, and that defendant desired to put the same under cultivation, and, in order to do so, was compelled to drain the land by means of a ditch; that she could not drain...
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