Wheatley Grading Contractors, Inc. v. DFT Investments, Inc.

• Decision Date: 06 November 1979
• Docket Number: No. 35266,35266
• Parties: WHEATLEY GRADING CONTRACTORS, INC. et al. v. DFT INVESTMENTS, INC.
• Court: Georgia Supreme Court

Page 614

261 S.E.2d 614

244 Ga. 663

WHEATLEY GRADING CONTRACTORS, INC. et al. v. DFT INVESTMENTS, INC.

No. 35266.

Supreme Court of Georgia.

Submitted Sept. 17, 1979.

Decided Nov. 6, 1979.

John C. Bell, Jr., Augusta, for appellants.

Dye, Miller, Bowen & Tucker, A. Rowland Dye, Augusta, for appellee.

BOWLES, Justice.

The property in dispute in this case is a narrow strip of land, formerly a road, which lies north of lands owned by appellants and appellee. Appellants, Wheatley Grading Contractors, Inc., George Wheatley, and Perry Clarke built a fence to enclose that portion of the former road which is north of their properties and obstructed the strip with trash and debris. Appellee, DFT Investments, Inc., brought suit seeking to have the obstructions removed to permit access to its property by the former road. The trial court ordered that appellants be temporarily enjoined from maintaining the fence, gate, and obstructions on the property pending trial on the merits.

We affirm.

"When a trial judge is called upon to determine whether or not a temporary injunction will be granted or denied he is vested with a wide latitude of discretion, and this discretion will not be disturbed unless manifestly abused." Taylor v. Evans, 232 Ga. 685, 208 S.E.2d 492 (1974). In view of the fact that appellee's claim to title of the strip of land is supported by a deed and appellants' claim is not, we cannot say that the trial court abused its discretion in ordering the recently placed obstructions removed.

Appellants rely on the case of Miller v. Wells, 235 Ga. 411, 219 S.E.2d 751 (1975) to support their argument that they should not have to remove the obstructions they placed. In that case, this court reversed the grant of an interlocutory injunction which, in effect, required the removal of a hedgerow because that "would require appellants to provide access where none now exists." 235 Ga. at 417, 219 S.E.2d at 756. We believe that this language in Miller is too broad. In the case at bar, the reason no access now exists is because appellants have acted to accomplish that end. To require a landowner to await a trial on the merits to Regain access to his land would be an intolerable imposition. Consequently, we must disapprove this broad language in Miller.

Even prior to the recognition of mandatory injunctions in Georgia, this court sustained the validity of injunctions which, in effect, required the removal of obstructions based on the rationale that the injunctions simply restrained a continuous trespass. See Mosley v. Foster, 223 Ga. 603, 157 S.E.2d 255 (1967) and Lockwood v. Daniel, 193 Ga. 122, 17 S.E.2d 542 (1941). In Faulkner v. Ga. Power Co., 241 Ga. 618, 247 S.E.2d 80 (1978), we recognized that since the...