51 Ga. 519 | Ga. | 1874
We do not deny the principle that the owner of land has-not the right to excavate his soil to the line of an adjacent proprietor, so as to cause his neighbor’s land to fall away, and thereby deprive him of the use of his land. It has been rec
But the ease under consideration was an application for an injunction to restrain the owner of adjacent land from improving his lot by excavating his soil to the line of complainant’s lot. The bill does not charge that any damage has resulted to the land of complainant, or that the character of his soil is such that it cannot stand by its own coherence. There is a statement that the defendant has removed the soil for a .space of seventy-five or one hundred feet, and that complain•ant has been injured $>275 00. But the connection in which ■that statement is made shows that it was intended to mean that it would cost that amount for complainant to put up an arti.ficial wall along the line of excavation. It does not appear that any of complainant’s soil has been displaced, or that it .necessarily must be, to an extent that will materially affect the •value of her land. To arrest by injunction the improvements that are necessary in cities and towns on the ground that the digging and grading which are required for the use and enjoyment of a lot, is an injury to an adjoining proprietor, a •clear case of damage, actual or inevitable, should be made out. .In Smith vs. Thackerah, 1 Common Bench, 524, as stated in 2 Washburn on Real Property, the doctrine seems -to be sustained that if the digging would not have caused any appreciable damage to the adjacent land in its natural state, it would
As already stated, complainant does not show that her soil has been displaced, or that her land must necessarily be damaged so as to require the strong arm of equity to restrain the defendant from further improving his lot. The defendant denies, by affidavit, that there has been any damage, or that, in his judgment, there will be any to complainant’s land. If any does result the defendant is fully able to respond. The complainant in fact shows by her bill the amount of damage she may suffer on account of the alleged trespass, and alleges that it would require $600 00 to sustain the dirt wall which would be left by the excavation. This fact, in view of the section of the Code hereafter cited, is entitled to consideration in determining whether the chancellor abused his discretion in refusing the injunction to arrest the defendant in the improvement of his property after one-half of it has been accomplished. In Farrand vs. Marshall, 21 Barbour, 409, such an injunction wras granted. But the complainant’s land had already, when the injunction was applied for, been caused to crack and subside, on account of the excavation, for a great portion of two sides of the lot, and which also seriously endangered the dwelling house. The fear of the complainant in this case is that some of her soil may fall away, and her lot thereby become damaged. Equity will not interfere to restrain a trespass unless the injury is irreparable in damages, or the trespasser is insolvent, or there exists other circumstances which, in the discretion of the court, render the interposition of this writ (injunction) necessary and proper, among which shall be the avoidance of circuity and multiplicity of actions: Code, section 3219.
We think that under the facts of this case the complainant
Judgment affirmed.
