115 Ga. 340 | Ga. | 1902
This was an application for an injunction, in which the Georgia Railroad and 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 so doing 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.
The alignment of error last referred to can not be considered, for the reason that the bill of exceptions was not tendered within twenty days from the date of the ruling complained of, and there were no exceptions pendente lite complaining of this ruling. The objection urged to the allowance of the amendment, which is the subject of the second assignment of error, was that the amendment set forth a new cause of action. "We do not think the amendment subject to this objection. It was simply an explanation of the effect which the alleged wrong would have upon the rights of the plaintiff and an amplification of the prayers of the original petition.
-The controlling question in the case, is that which arises upon the first assignment of error, in which complaint is made of the order granting an injunction. The evidence "before the judge was. conflicting upon some of the questions of fact involved. There was evidence authorizing a finding by the judge that the plaintiff was either the owner of the two acres of land referred to in the petition or had such an interest therein, as against the defendant, as would authorize the erection and maintenance of a pond for the purpose of creating a water supply for its uses in operating its railroad ; that the pond was supplied by two branches or rills flowing from the land of the defendant to the land of the plaintiff; that these branches were fed by two springs upon the land of the defendant; that the damages resulting from a diversion of the water would be irreparable; and that even if this were not true, the defendant was unable to respond in damages for the injury thus inflicted. It is contended that the order granting the injunction, when applied to the facts of the present case, would have no other effect than to compel the defendant to perform an act, and that the writ of injunction can not be used for this purpose under the law of this State. In Thomas v. Hawkins, 20 Ga. 126, 134, it was held that “the court will not, by injunction granted upon an interlocutory appli
It does not necessarily follow, however, because injunction can be used only for this purpose, that it can not be used when the effect of yielding obedience thereto would incidentally require the performance of some act, if the main purpose of the injunction is to restrain the doing of some wrongful act. It seems to us that the true meaning of the section above quoted is, that the court can not issue a purely mandatory order, but that the court can grant an injunction the essential nature of which is to restrain, although in yielding obedience to the restraint the defendant may be incidentally required to perform some act. Under no other view than
Judgment affirmed.