115 Ga. 77 | Ga. | 1902
Catharine E. B. Harker, made her application for an injunction against Eugene E.Murphey,to restrain him from closing up an alley in the city of Augusta, and from erecting a permanent structure therein which would impede the free use of the alley. The plaintiff sued in the capacity of executrix of the last will of her husband, Edward W. Harker, and as life-tenant in the property abutting upon the alley; the life-estate, therein being created under the will of her husband. At the hearing an injunction was granted, and to this the defendant excepted;
But the deed conveyed to Murphey the perpetual right, in common with Myers and his heirs and assigns, to use the alley “ for ingress and egress from and to Washington street;” and expressly referred to the Myers deed as the source from which could be derived information as to what was the interest in the alley thus conveyed. Under the terms of the Murphey deed just referred to, just as under the terms of the Myers deed, the grantee obtained title to the lot conveyed, and no other interest in the alley which hounded it on one side than the right of ingress and egress from and to Washington street, and the reference in the Murphey deed to the Myers deed makes the reservation in the Myers deed in reference to building over the alley a part and parcel of the Murphey deed. The only conveyance under which Murphey claims the right to derive title to the alley or any right to use the same being the conveyance to him above referred to as the Murphey deed, and this conveyance not having that effect, and the rights of Murphey being limited by the stipulations in the Myers deed, Murphey had no right to erect any structure, permanent or temporary, in or above the alley, and the erection of such a structure would be an invasion of the legal rights of the owner of the alley. The Lecky deed, under which the plaintiff claims, does not expressly refer to the alley, but it conveys a lot which by description embraces all of the parcel of land formerly owned hy Reid, the grantor, except that which had been theretofore ■ conveyed to Murphey and Myers, and expressly says that the lot conveyed is “ bounded on the north by Edmund T. Murphey’s lot.” As the southern boundary of the Murphey lot is on the north side of the alley, the conveyance to Lecky embraces the alley, and of course the grantee in that deed and his successors and assigns would acquire title to the alley, subject only to the right of those claiming under Myers and Murphey
In Lewis v. Singleton, 61 Ga. 164, Judge Warner says : “It was not necessary that the defendant should have been officially apprised of the receiver’s appointment; if he had actual knowledge of the granting of the order requiring him to turn over the goods to the receiver, that was sufficient.” See also Drakeford v. Adams, 98 Ga. 722. If a defendant, after notice that an injunction or restraining order has been granted, does an act in violation of the injunction or restraining order, and thus changes the status of the property involved in the litigation, the judge has authority, either at the hearing for an injunction, or upon an application for an attachment for contempt, to require the defendant to restore the status as it was at the time he first received notice of the fact that the injunction was granted. See Byne v.Byne, 54 Ga. 257; Thweatt v. Gammell, 56 Ga. 98; Wimpy v. Phinizy, 68 Ga. 188; Robinson v. Woodmansee, 76 Ga. 830; Ryan v. Kingsbery, 88 Ga. 379; Baker v. Weaver, 104 Ga. 228. In the present case the judge had authority to require the defendant to restore the status as it existed at the time he or those representing him first had knowledge that the restraining order was granted. The defendant admitted that he had notice of the character of the restraining order on the evening of May 30 ; and the judge could have found from the testimony that the foreman in charge of the work, who was the representative of the defendant, had notice that the restraining order was granted immediately after the same was filed in the clerk’s office. Under such circumstances it was not error for the judge to require the defendant to restore the status as it existed at the time that the petition was filed. Simply requiring the defendant to restore the status, under the circumstances of this case, was, to use the language of Mr. Justice Hall in Robinson v. Woodmansee, supra, “ a mild use of the judge’s discretion.” The utter disregard of and contempt for the court’s order, which was manifested by the defendant after he had actual notice that the restraining order had been granted and of the effect of the same, would have justified much more rigorous measures than the judge saw proper to employ, to impress upon the defendant as well as others the validity and binding force of an order of a judge of the superior courts re
In Moore v. Ferrell, 1 Ga. 7, it was held that equity would interfere to restrain a trespass where the damages would be irreparable, although the title of the plaintiff might be questioned by the answer, but where the title is denied the courts would look more closely to the character of the trespass. In the opinion Judge Nisbet says: It is, however, contended by counsel for the defendant in error, that granting to a court of chancery the right to enjoin trespasses in cases of irreparable injury, yet the interference of that court is limited to cases where the title of the complainant is not questioned by the answer, and inasmuch as this answer sets up title in the • defendants, the injunction was rightfully dissolved. Where injunctions have been granted to stay waste, as before stated, the eases have been founded on privity of title; and in such cases no question as to title could be made. The distinction, so far as the jurisdiction of chancery is concerned, between waste and trespass, has been broken down. Now injunctions will be'granted against waste and trespass (6 John. C. Rep. 497), but against trespass in the cases before designated, and in all such cases, whether the title be brought in issue or not. It seems, however, that where the complainant’s title is denied, the courts will look more closely to the character of the trespass.” In Field v. Howell, 6 Ga. 426, Judge Nisbet, in referring to the case of Moore v. Ferrell, thus states the conclusion reached in that case: “ When the defendant sets up a title to the property, adverse to that of, the complainant, in a proper case made, it was there held that a court of chancery would not undertake to determine the title, but would lay hold of the property, in the exercise of a preventive power appertaining to that jurisdiction, and by injunction protect it until the law tribunal should determine the title.” See also, in this connection, Powers v. Heery, R. M. Charl. 523; Johnson v. Hall, 83 Ga. 281; Camp v. Dixon, 112 Ga. 877—8. In the present case, whether we tre
The judgment under review is said to be erroneous, for the reason that the judge at an interlocutory hearing has no right to make a decree settling the question of title in a case like the present. A sufficient reply to this contention is that the order of the judge is not a decree settling the question of title. It is the duty of the judge at an interlocutory hearing to inquire into the question of title, in order to determine whether it is appropriate to interfere by granting an interlocutory injunction, and to this extent only he settles the question of title. This does not prevent the defendant at the final hearing from offering additional facts throwing light upon the question of title, if he can do so, but upon the facts as they appear before the judge at the interlocutory hearing he must determine whether the plaintiff has such a title or such an interest in the property as would authorize the granting of an interlocutory injunction. The order granting an injunction amounts to a decision to this effect, but to nothing more. If the judgment granting an injunction is based upon the decision of a question of law determining that the plaintiff has, under the facts proved, such an interest or such a title in the property as to authorize the issuing
It was claimed that under the evidence the conduct of the plaintiff had been such that she was estopped from interfering with the defendant in the erection of the structure in the alley, and that the defendant and his predecessors in title had exercised such acts of ownership in the alley as to give him a prescriptive title thereto. As to these matters, as well as to all other questions of fact arising in the case, it is sufficient to say that the evidence was of such a character as to authorize a finding by the judge in favor of the plaintiff’s contention. On all questions of law determined by the judge his conclusions were, in our opinion, correct. On all questions of fact there was ample evidence to sustain his findings. The judgment rendered, requiring the property to be restored to the condition in which it was at the time of the filing of the petition, and enjoining the defendant from disturbing the status as thus restored until the final hearing of the case, will not be interfered with.
Judgment on mainbill of exceptions affirmed; cross-bill dismissed.