27 Ga. 499 | Ga. | 1859
By the Court.
delivering the opinion.
Was the Court right, in overruling the demurrer to the bill ? We think so.
■. -The site of the contemplated mill, was, not on any part of the thousand yards strip, but, further down, somewhere on lot 876, or lot 277. According to the deed, the company had nothing in either of these two lots, but a right, of way. The grant in the deed, is expressed in these words; “Also the right of way, to build, own, and keep up, and use, the said railroad, as now constructed.”
.The bill then says, that the way, the rightto which was thus
The bill then says,that the mill was to be erected witnin seven or eight feet of the track of the road ; and, that, if thus erected, there would bo “no sufficient room' for the purposes and necessities of” the company, “in the repairing and construction of said Railroad.”
All these things the demurrer admits to be true.
If the “ understanding” between the parties to the deed, be taken as the test, the mill would be clearly an obstruction, slanding in the way granted, for, by that understanding, the way granted was to be at least thirty-six feet wide, eighteen feet on each side of the track, and every obstruction to a way is a nuisance — and, such a nuisance, that, in general, we may say of it, that the damages it occasions, are not adequately measurable by money. Hence, in almost every case of sucha contemplated obstruction, there is jurisdiction to equity, to interposo by injunction, and prevent the doing of that which, if done, would make the obstruction. And we see nothing in the present case to.exclude it from the general rule.
And oven, if we lay the understanding of the parties out pf the question, and go by the letter of the deed, the case does not seems to be, materially, altered — the allegation in the ’ bill considered. That allegation is, that the erection of the mill, would not leave sufficient room, for the repairs and construction of the track. The letter of the deed gives sufficient room for such repairs and construction. Therefore, the erection of the mill, would violate the letter of the deed — taking as we must, the allegation of the bill, tobe true. And the injury or damage occasioned by such a violation, would be ..equally as difficult, of measurement in money, as the injury .or damage,in the case first considered.
Even, then, if the case be confined to the letter of the
Injunction in cases of this kind, is on many obvious accounts» a preferable remedy to a suit for damages. And the only question in them, is, one as to the remedy. The party sued comes into equity and demurs; thus he admits himself, a wrong doer in purpose, and yet he says — do not interfere with me, let me carry out my purpose. The law will give the party I injure, redress. There, surely can be little in such a plea as this, to commend it to favor. It ought to be disregarded if possible.
Judgment affirmed.
