171 Ga. 238 | Ga. | 1930
On November 8, 1929, S. C. Styron instituted an action for injunction against Mrs. E. M. Eosser. The petition as amended alleged that in 1903 Bryan M. Grant,executed to J. A. Terrell a deed by which he “dedicated to the public for its use as an alley” a described strip of land 10 feet wide, carved from the “north side of lot No. 2 in block 10 of the L. P. Grant estate,” extending from Loomis Avenue southeast back to a 20-foot alley, and that “the same has ever since that time been in constant and uninterrupted use as such;” that petitioner owns said lot No. 2, and the defendant owns the south half of lot No. 3 in block 10 of the L. P. Grant estate; that the respective lots adjoin said alley which separates them; that petitioner has used said alley “for the purpose of egress and- ingress” to the rear of his property for more than 7 years; that defendant “is now attempting . ; . and has actually started the construction of a garage in and on the said alleywajr, which if completed will destroy petitioner’s right of egress and ingress, and further . . will divert the natural flow of water” causing it to flow “over and along . . petitioner’s prop
The petition alleged a cause of action for injunctive relief, and was sufficient as against all of the grounds of demurrer. The allegations were sufficient to show dedication to the public and acceptance, and that the petitioner would be injuriously affected by closing of the alley. Civil Code, § 4171; 8 E. C. L. 900, § 25. The foregoing does not conflict with Healey v. Atlanta, 125 Ga. 736 (54 S. E. 749).
While under the code an injunction which is purely mandatory in its nature can not be granted, the court may grant an order the essential nature of which is to restrain, although in yielding obedience to the restraint the defendant may incidentally be compelled to perform some act.” Goodrich v. Georgia Railroad &c. Co., 115 Ga. 340 (41 S. E. 659); Mackenzie v. Minis, 132 Ga. 323 (8) (63 S. E. 900, 23 L. R. A. (N. S.) 1003, 16 Ann. Cas. 723); Spencer v. Tumlin, 155 Ga. 341 (2) (116 S. E. 600); Phinizy v. Gardner, 159 Ga. 136 (2) (125 S. E. 195); Aspinwall v. Enterprise Development Co., 165 Ga. 83 (140 S. E. 67). The order was not erroneous as a grant of mandatory injunction.
Judgment affirmed.