159 Ga. 136 | Ga. | 1924
Lead Opinion
1. One wlio is the owner of the easement of burial in a cemetery is entitled to recover damages from any one who wrongfully interferes with such right. Jacobus v. Congregation of the Children of Israel, 107 Ga. 518 (33 S. E. 853, 73 Am. St. R. 141); Stewart v. Garrett, 119 Ga. 386 (46 S. E. 427, 64 L. R. A. 99, 100 Am. St. R. 179). If such trespass is a continuing one, a court of equity will enjoin it. Stovall v. Caverly, 139 Ga. 243 (77 S. E. 29). If we concede that the plaintiff had an adequate remedy at law for the removal of the fences erected by the defendant across the private way to the cemetery, such remedy would not give adequate relief to the .plaintiff for the continued plowing and cultivation of the roadway. Such relief could only be obtained in equity.
2.'Where the main purpose of the injunction is not to require affirmative action, but to restrain the defendant from repeating a trespass, the in
Judgment affirmed.
Dissenting Opinion
dissenting. I can not concur in the judgment of affirmance in this case. Did the court below err in overruling the demurrer' to the petition ? That depends upon whether the plaintiffs have an adequate remedy at law; or whether'the relief sought is mandatory in its nature, and forbidden by the Civil Code (1910), § 5499. The Civil Code (1910), § 824, provides: “Whenever a private way has been in constant and uninterrupted use for seven years or more, and no legal steps 'have been taken to abolish the same, it shall not be lawful for any one to interfere with said private way.” And § 825 provides: “In the event the owner
Another section of the code which bears upon this subject is § 5329, which provides that “Any nuisance which tends to the immediate annoyance of the citizens in general, is manifestly injurious to the public health and safety, or tends greatly to corrupt the manners and morals of the people, may be abated and suppressed by the order of any two or more of the justices of the peace of the county, founded upon the opinion of twelve freeholders of the same county, who shall be summoned, sworn, and impaneled for that purpose; which order shall be directed to and served by the sheriff of the county, or his deputy.” In Salter v. Taylor, 55 Ga. 310, it was held: “The stopping or impeding a private way is a private nuisance. Such a nuisance may be abated by a proceeding before two justices of the peace and a jury, under sections 4094 and 4098 of the code.” In that case Taylor contracted with Salter for a right of way through the latter’s land, and it was laid out, and Taylor incurred some expense in causewaying some of it. He used it for two years, when Salter erected a fence across it. Taylor proceeded, under § 4094 and the subsequent sections in the same chapter of the code, to have the fence abated as a nuisance, by a petition -to two justices of the peace, who summoned a jury, and they passed upon the case, and the fence was, by order of the court, under the finding of the jury, to be abated. Salter carried the case by certiorari to the superior court; that court sustained the verdict and judgment below, and this ruling was assigned as error. In delivering the opinion of the court in that case Judge Jackson said: “Was the fence a private nuisance? Blackstone says, fa nuisance
The case of Russell v. Napier, 80 Ga. 77 (4 S. E. 857), is relied on by the defendants in error as authorizing a court of equity to interpose in such a case as the present by injunction. In that case it was held, that, “Although the closing of the right„of way may have been a nuisance for which an action at law might have been maintained, yet it was a continuing nuisance, which would authorize a court of equity to interpose by injunction.” In Simmons v. Lindsay, 144 Ga. 845 (88 S. E. 199), this court held: “Where in an equitable petition the sole prayer for injunction was that the defendant should be enjoined from maintaining an obstruction across a private right of way,, which obstruction consisted in a fence completed before the filing of the petition, it was erroneous to grant an interlocutory injunction mandatory in its character, and amounting to a direction to the defendant to remove the fence.” In delivering the opinion of the court in that case Mr. Justice Lumpkin said: “The sole prayer for injunction was that the defendant be enjoined ‘from maintaining said obstruction across said right of way.’ It is declared by the Civil Code (1910), § 5499: ‘An injunction can only restrain; it can not compel a party to perform an act. It may restrain until performance.’ It has been held, that, if the main purpose of an equitable petition is to compel the performance of an act, injunction can not be used as a remedy to accomplish that purpose; but that while the court can not, on an