Graham v. Dahlonega Gold Min. Co.

• Decision Date: 18 September 1883
• Citation: 71 Ga. 296
• Parties: GRAHAM v. THE DAHLONEGA GOLD MINING COMPANY et al.
• Court: Georgia Supreme Court

71 Ga. 296

GRAHAM v. THE DAHLONEGA GOLD MINING COMPANY et al.

Supreme Court of Georgia.

September 18, 1883

September Term, 1883.

1. Where certain litigation between defendants in a bill in equity is only incidentally referred to in the stating part of the bill, and is not at all material to any question raised by the pleadings, a failure to attach such proceedings as exhibits is no ground for demurrer.

( a. ) Besides, the pleadings in this case are shown to be voluminous, and the right to refer to them is asked, as they are in the court where this bill is pending, if it should be deemed necessary.

2. If a continued and permanent diversion of the waters of a stream running through complainant's land has been made by means of ditch opened by the defendants, depriving him of its use for agricultural and mining purposes, there being valuable gold mines on the premises, which he is unable to work or otherwise utilize for the want of the water thus diverted and if defendants are insolvent or rapidly becoming so equity will interpose and grant relief by injunction.

( a. ) Each day tat this diversion continues is a fresh trespass, and gives an action for nominal damages, if nothing more; and equity will interpose for the avoidance of circuity and multiplicity of suits. It will also grant relief, if the trespass be destructive of the very nature and substance of the estate.

3. Objection to a bill as multifarious is not favored by courts of equity, it being the interest of the parties as well as the interest of the public that all matters in controversy between them should be settled by one suit, when it can be done with safety and without practical inconvenience.

( a. ) A bill to enjoin trespassers and to establish and quiet the right to the use of a stream appropriated by others, is not multifarious or objectionable for misjoinder because it is brought against all who have participated in the wrong or procured it to be done.

( b. ) The policy of the legislature on this subject considered.

Practice in Superior Court. Injunction. Trespass. Water-courses. Damages. Parties. Before Judge ESTES. Lumpkin Superior Court. April Term, 1883.

Graham filed his bill against the Dahlonega Gold Mining Company and the Etowah and Battle Branch Gold Mining Company, alleging in brief, as follows:

Complainant is the owner of certain lots in Lumpkin county of the value of $10,000.00, principally valuable for mining and mineral purposes, but also valuable for farming purposes. Through these lands, from time immemorial, have flowed two branches or creeks in their natural channels, and the water and water-power thereof are essential to the proper use and enjoyment of the lands for mining or agricultural purposes. On January 1, 1879, defendants, or one of them, through their officers and agents, with force and arms unlawfully entered on complainant's land and cut, dug and erected a water-ditch, flumes and trestles on adjoining lands, so as to carry the water from these creeks by a different channel, and deprive him of its use, rendering his land almost wholly valueless Both of defendants are claiming title to the water-ditch by which the water is thus conveyed away; and they are engaged in litigation as to the same in the superior court of Lumpkin county and the Supreme Court of the state. The record in the case is voluminous, and leave of reference is asked without attaching it. Complainant does not know which is the owner, but both have concluded to commit this trespass on him for their mutual benefit. The damage is already great, and if continued will be irreparable. The remedy at law is inadequate, because the defendants are foreign corporations, have little visible property in the state, are engaged in expensive and exhaustive litigation and are now insolvent, or will soon be so. One of defendants has already recovered a judgment against the other for $7,000.00 which would be senior to a judgment for complainant for damages. Such a judgment would be unproductive. The prayers were for the recovery of damages already done, for the restoration of the water diverted, and for injunction to restrain interference therewith.

Defendants demurred to the bill on the grounds stated in the decision. The demurrer was sustained, and complainant excepted.

WIER BOYD, for plaintiff in error.

H. H. PERRY; W. P. PRICE, for defendants.

HALL Justice.

This was a bill to restrain a trespass, which consisted in the continued and permanent diversion of a stream running through complainant's land through a ditch opened by the defendants. The bill set forth that the damage occasioned by this diversion of the water was irreparable, in that it deprived him of its use for agricultural, domestic and mining purposes, there being valuable gold mines on the premises which he was unable to work or otherwise utilize for the want of this water thus diverted, used, and appropriated by the defendants. The insolvency of defendants was substantially though not very distinctly charged. There was a prayer for the restoration of the water to its natural channel, and for a perpetual...