120 Ga. 253 | Ga. | 1904
The petition charged that the three defendants had confederated for the purpose of injuring the plaintiff. Lehman alone answered. Even if there were defects in the service as to JBrooker, Ray was properly served, and failed to answer. His silence was therefore to be treated as an admission of the sworn-allegations of the petition» warranting an injunction against him and if, as claimed, we can not consider the evidence, it leaves the record in such shape that we can at least determine that it would have been proper to enjoin Ray from the continuance of the wrongful act alleged against him, and, by his silence, admitted to be true. According to the allegations of the verified petition, the defendants had confederated together to blast, pound, and dig the rock on a vacant lot adjoining plaintiffs’ spring, not for the purpose of obtaining water useful to the defendants, but with the sole intent of injuring the plaintiffs and destroying a mineral spring of great value, around- which they had constructed an immense plant. While the word is not used, the facts amount to a charge that the-defendants are acting maliciously. If, as alleged, the effort is to destroy a known or well-defined subterranean- stream, or to divert it from the spring of the lower proprietor,” the plaintiffs are not without remedy, even though the flow is underground. Or if the evidence shall show that it is a case of interference with percolating waters, and that the defendants are actuated by malice in wasting or diverting the water, the plaintiffs are still entitled to equitable relief. Wheatly v. Baugh, 25 Pa. St. 528, 64 Am. Dec. 721, cited in Sadler v. Lee, 66 Ga. 48. And compare Barclay v. Abraham (Iowa), 96 N. W. Rep. 1080; Stillwater Co. v. Farmer, 60 L. R. A. 875, as to the effect of malice and waste.
Lehman’s afaswer was in the nature of a demurrer, answer, and plea combined. It admitted the digging of the well, and in so far as it denied that there was any underground stream running from it to the spring, or that any ddmage would be occasioned to the plaintiffs by the digging of the well, it raised an issue of fact which could properly have been considered by the trial judge on the ap
It is said, however, that the plaintiffs have not made any ho'na fide effort to brief the evidence, and that therefore the case should be dismissed. But this result does not flow from a disregard of
Judgment affirmed with direction.