Swift & Co. v. Coker

83 Ga. 789 | Ga. | 1889

Simmons, Justice.

The trial judge did not err in grantmgthe injunction complained of in this case. Both, of these parties held under deeds which stipulated and agreed that the land was to be used for no other purpose than as an alley, ánd that it was to be kept open and used as an alley for the mutual benefit of the owners of the property on each side of the alley. Hnder these covenants in the deeds, we do not think that the defendants had any right to obstruct the alley “by building a wooden frame entirely across the same, and putting up hooks and slides of metal to hang and slide beef and fresh meat on,” as alleged in the complainants’ petition. The obstruction seems to have been erected by upright posts attached to the walls on each side of the alley, and cross-beams running from one post to another the whole length of the alley; and attached to these crossbeams was the slide, with hooks for the purpose of fastening the beef, so that it could be carried from ope end of the alley to the other and stored in the warehouse of the defendants. While it is true that under the law, one tenant in common has a right to use the whole property if he does not exclude his co-tenant, we think that under the covenants in these deeds this structure and slide were not the kind of use contemplated therein. If this had been an alley dedicated to the public, no one would contend that he had a right to erect a structure of this sort therein. While the alley under consideration is not a public alley, under the covenants in the deeds we think the same principle of law as between the owners on each side thereof applies, and that it must be used only for the purposes mentioned in the deeds. One tenant in common has no more right to obstruct it over the objections of the other tenants, than he would have to obstruct a public alley over the objection of the town authorities. Nor do we think that the fact that the plaintiffs were not using the alley at the time, the obstruction was erected and therefore were not damaged by the obstruction, makes any difference in law. The plaintiffs are entitled to stand on their legal rights, whether they are damaged or not, and to object to the alley being diverted from the use for which it was originally intended and which was stipulated in the deeds. Judgment affirmed.