159 Ga. 321 | Ga. | 1924
Lead Opinion
1. The restriction “for residence purposes,”• as contained in the deed involved in this ease, does not prohibit the erection of apartment-houses used exclusively for residence purposes. McMurtry v. Phillips, 103 Ky. 308 (45 S. W. 96, 40 L. R. A. 489); Schadt v. Brill, 173 Mich. 647 (139 N. W. 878, 45 L. R. A. (N. S.) 726, 728 and note); Teagan v. Keywell, 212 Mich. 649 (180 N. W. 454); Struck v. Kohler, 187 Ky. 517 (219 S. W. 435).
2. Under the evidence the court was authorized to hold that the defendant was not violating the restriction in the deed with reference to “barns, servants’ and other outhouses,” by the erection of “garages” to be used merely for storing the private cars of occupants of the apartments to which they appertain. See Riverbank Improvement Co. v. Bancroft, 209 Mass. 217 (95 N. E. 216, 34 L. R. A. (N. S.) 730, note, Ann. Cas. 1912B, 450).
3. The judgment refusing to grant an interlocutory injunction was not erroneous. Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
A motion has been filed for a rehearing, based on the contention that this court failed to rule on the issue made by the pleadings as to whether the garages proposed to be erected by the defendant, Hunter, should have been enjoined. The full report of the case following the headnotes shows that the court took that issue under consideration. The headnote holding generally that the judgment refusing to grant an interlocutory injunction was not erroneous necessarily included the issue as to the garages. However, on consideration of the motion for rehearing, the court adds headnote 2, specifically dealing with that issue. The ruling is based on the evidence that the garages intended to be erected will be used merely for storing private cars of occupants of the apartments, and not for the business of repairing or similar uses. The motion is denied.
On consideration of the motion for a rehearing I am of the opinion that the judgment of the court below should be reversed.