Shemwell v. McIntosh

Head, Justice. The plaintiff in error sought to enjoin the construction of a manse (residence) on certain lots in a named subdivision. Upon the hearing the trial judge dissolved the temporary restraining order and denied an interlocutory injunction. The exception is to this judgment. Counsel for the plaintiff in error concede in their brief filed in this court that the general restrictions recorded in the office of the clerk of the superior court, pertaining to the development of the subdivision in question, are not violated, but it is contended that there are implied restrictions upon the use of the property under a general plan of development, and that it was, therefore, error to deny the interlocutory injunction. Held: Where a restrictive covenant by implication is sought to be enforced, the implied restriction must be proved beyond a reasonable doubt. Randall v. Atlanta Advertising Service, 159 Ga. 217 (125 S. E. 462); Kitchens v. Noland, 172 Ga. 684 (158 S. E. 562); Atlanta Association of Baptist Churches v. Cowan, 183 Ga. 187 (188 *895 S. E. 21); Jones v. Lanier Development Co., 190 Ga. 887 (11 S. E. 2d, 11); England v. Atkinson, 196 Ga. 181 (26 S. E. 2d, 431). The evidence offered by the plaintiff in error did not establish the implied restriction relied upon beyond a reasonable doubt, and the court did not err in denying the interlocutory injunction. No. 16544. March 15, 1949. Bennet, Peacock & Perry and Asa D. Kelley Jr., for plaintiff. S. B. Lippitt, for defendant. Judgment affirmed. All the Justices concur.