Saint Amand v. Lehman
47 S.E. 949
Ga.
1904
Check Treatment
SiMMONS, C. J.

Thе petition charged that the three defendants had confederated for the purpose of injuring the рlaintiff. 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 defendаnts 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 proprietоr,” the plaintiffs are not without remedy, even though the flow is underground. Or if the evidence shall show that it is a case оf 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 admittеd 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 propеrly have been considered by the trial judge on the ap*257plication for injunction. In so far, however, as it sеt out “that plaintiffs are not remediless in courts of law, and that they have no right to ask equitable relief; that if he [defendant] has damaged or should damage them in any way on account of the matters set up in their petition, they have a complete and adequate remedy at law,” it was performing the office of а demurrer, which, however, should have been overruled, for it is hard to imagine any case to which the remedy of injunction to prevent irreparable damages would be applicable if not to facts like those set out in this petition. Had it appeared, ‍‌‌​​​​​‌​​​​‌‌​​‌​‌‌​​‌​​​‌‌​​​​​‌‌​​‌​​‌‌‌​‌​​​‍therefore, that the interlocutory relief prayed for was refused on this ground, a reversal would necessarily result. And- so too if it was denied because of conflicting еvidence. For, while ordinarily the court will not interfere with the chancellor’s discretion in passing upon disputеd facts, there are some cases in which the fact of conflict does not deprive the petitioner of a remedy by which to preserve the status until the disputed issue may be submitted to the jury, in a trial in which both parties have the right to cross-examine all the witnesses. This distinction was pointed out in Everett v. Tabor, 119 Ga. 128, though the opinion was not published until after the interlocutory hearing in the present case. It was there said that there would be strong reason to grant the injunction if the delay to one party would not counterbalance the irreparable injury which might flow to the petitioner were the chancellor to decide the facts in a way different from that whiсh might be determined by the jury on final verdict. The present case is within that rule. The well of the defendants is being dug on a vаcant lot. They have no immediate ‍‌‌​​​​​‌​​​​‌‌​​‌​‌‌​​‌​​​‌‌​​​​​‌‌​​‌​​‌‌‌​‌​​​‍occasion for its use, and the injunction can only occasion a delay from which no serious or irreparable damage can flow. But if the blasting or digging should divert the underground stream, or destroy the spring of the plaintiffs, and if on the final trial the jury should find in favor of the plaintiffs, it is manifest that an enоrmous damage of a character considered irreparable in law would be inflicted. Money could not compensate for what had been done, and refilling the well would not undo the harm which had been done.

It is said, however, that the plaintiffs have not made any ho'na fide effort to brief the evidence, and that thеrefore the case should be dismissed. But this result does not flow from a disregard of *258the rule of practice. Southern Mining Co. v. Brown, 107 Ga. 264. It does prevent this court from insрecting the brief of evidence, and if the case were solely dependent upon a considerаtion of what appeared therein, an unconditional affirmance would necessarily result. But the petition and answer were both sworn to, and in reading them as pleadings we necessarily are put in possessiоn of the fact that the parties were diametrically at issue, and that there was a conflict in the evidence. The testimony must conform to the pleadings, and could do no more than add to the conflict. In consideration • of which, and that no harm could come to the defendants from granting the injunction, and that irreparable injury might flow to the petitioners from its refusal, we affirm the judgment. But under the Civil Code, §§5998, 5586, we direct that the judgment of affirmance shall not prejudice the right of the plaintiffs to present another application for an injunction. Brown v. Joiner, 77 Ga. 232; Ford v. Harris, 95 Ga. 97 (4); Sims v. Cordele Ice Co., 119 Ga. 597.

Judgment affirmed with direction.

All the Justices concur.