Central of Georgia Railway Co. v. Americus Construction Co.

Fish, C. J. (After stating the facts.) 1. The demurrer to the injunction feature of the petition was general and, therefore, could be urged after the appearance term. The question then is, should it have been sustained? Our Civil Code provides: “An injunction can only restrain; it can not compel a party to perform an act. It may restrain until performance.” §4922. Section 3863 declares: “Where the consequences of a nuisance about to be erected or commenced will be irreparable in damages, and such consequences are not merely possible, but to a reasonable degree certain, a court of equity may interfere to arrest a nuisance before it is completed.” In Goodrich v. Georgia Railroad & Banking Co., 115 Ga. 340 (41 S. E. 659), after considering former adjudications of this court on the subject, it was held: “1. 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. 2. Where one wrongfully diverts a stream from its natural channel, and thus prevents it from flowing upon the land of a lower proprietor, the court may, at the instance of the latter, grant an injunction to prevent the owner of the land above from diverting the water from its natural course, although the effect of the order may be to require the defendant to destroy a ditch, or to do other acts [397] necessary to restore the water to its natural channel; and this is true although the diversion of the water was complete at the time the application for injunction was made, when it appears that the samé was promptly made and there was no unnecessary delay.” After announcing the rule stated in the first headnote, just quoted, Mr. Justice Cobb, delivering the opinion, said: “Under no other view than this could the decision of this court in City of Atlanta v. Warnock, 91 Ga. 210 (18 S. E. 135, 23 L. R. A. 301 44 Am. St. R. 17), ever have been rendered. In that case it was alleged that the City of Atlanta was maintaining manholes in its system of sewerage in such a condition as to allow the escape of noxious gases, and an order enjoining the city ‘from continuing said manholes in such condition as to allow the escape of noxious gases’ was passed. This order could not have been complied with in any other way than by the city authorities performing some positive act having the effect to prevent the flow of noxious gases. While the court would have had no right to require the city to construct and maintain manholes of a given character and description, because an order to this effect would have been purely mandatory in its nature, it did have a fight, in the exercise of its power to restrain, to prevent the continuation of the manholes that were in use in their then condition, notwithstanding the effect of this restraint would be to compel the city authorities to perform some act in reference to the manholes which would have the effect to prevent the escape of noxious gases.” The first headnote in the Goodrich ease was quoted in Macon &c. Railroad Co. v. Graham, 117 Ga. 555 (43 S. E. 1000). See also Mayor &c. of Waycross v. Houk, 113 Ga. 963 (39 S. E. 577); Brown v. Atlantic &c. R. Co., 126 Ga. 248 (55 S. E. 24). In 1 High on Injunctions, §2, it is said: “Courts of equity rarely interfere to command the doing of a positive act, but the same result is obtained by framing the injunction in an indirect form and prohibiting the defendant from doing the reverse of what he is desired to do.” Under the view we take of the petition in the present case, however, we do not deem it necessary to decide whether the equitable relief sought therein is of a purely mandatory character; for if it be granted that it is not, then, in our opinion, the demurrer should nevertheless have been sustained. The foundation for the interference of equity in restraint of nuisances rests [398] in the necessity of preventing irreparable mischief and multiplicity of suits. The principles governing courts of equity in the exercise of this jurisdiction are closely allied to those which control their action in restraining trespasses. The distinction between trespass and nuisance consists in the former being a direct infringement of one’s right of property, while in the latter the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it. In the one case the injury is immediate; in the other it is consequential, and generally results from the commission of an act beyond the limits of the property affected. And the injury must be such as is not susceptible of adequate pecuniary compensation in damages, or one the continuance of which would cause a constantly recurring grievance. 1 High, Inj. (4th ed.) §739. There must be such an injury as from its nature is not susceptible of being adequately compensated at law, or such as from its continuance or permanent mischief must occasion a constantly recurring grievance, which can not be otherwise prevented but by injunction. 2 Story’s Eq. Jur. §925: 3 Pom. Eq. Jur. §1350; Wood’s L. Nuis. §769. By irreparable injury is not meant, however, such injury as is beyond the possibility of repair or beyond possible compensation in damages, nor necessarily great injury or great damages; but the species of injury, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other, and which, because it is so large on the one hand or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law. Wood’s L. Nuis. §770. By continuing nuisance or constantly recurring grievance or permanent injury is not meant a constant and unceasing nuisance or injury, but a nuisance which occurs so often, and is so necessarily an incident of the use of property complained of, that it can be fairly said to be continuous, although not constant or unceasing. Ib. §772; Farley v. Gate City Gas-Light Co., 105 Ga. 323, 337, 338 (31 S. E. 193); 29 Cyc. 1222, et seq. “An essential fact to be averred and proved when an abatement of a nuisance is sought is that the annoyance and loss complained of will be continuous or recurrent, for the occurrences of nuisances, if temporary and occasional only, are not grounds for interference by injunction except in ex [399] treme eases. 29 Cyc. 1225. Equity will grant relief where the right is clear and the injury certain and an injunction'is necessary to prevent a multiplicity of suits or to suppress interminable and oppressive litigation; but a court of equity will not interfere to give relief against an alleged nuisance where the complaining party has an adequate remedy at law, as where redress can be obtained by an action for damages. The only injury alleged in the petition in the present case is, that the culvert as constructed, and as maintained by defendant, causes the overflow of plaintiff’s premises, thereby damaging plaintiff’s property. The alleged diversion of the stream was made when the culvert was originally constructed, and the alleged obstructions in the street and the diversion of the stream are shown to be merely incidentally injurious, as connected with the alleged defective culvert. It appears from the petition that the culvert was constructed by the lessor of the defendant, some ten years or more prior to the institution of the action, and it does not appear that the defendant had made any change therein during the term of its lease. The petition complains of only two instances when the culvert caused the overflow of plaintiff’s premises, one in May, 1903, and the other in Januarjr, 1906, and, so far as appears from the petition, these are the only instances of overflows caused by the culvert. Specific injuries and stated amounts of damages to various kinds of property belonging to the plaintiff are fully set forth in the petition in reference to each of the alleged overflows, by which the damages, apparently accurately set forth, are averred to have been sustained. There is no suggestion that the defendant is insolvent. It is, therefore,' apparent from the petition that the alleged injury to the plaintiff’s property caused by the culvert in question is not of such a nature as not to be susceptible of being adequately compensated at law, or such as from its continuous or permanent mischief must occasion a constantly recurring grievance, which can not be otherwise prevented than by an injunction. Nor does it appear, in view of the infrequency ■of the overflows caused by the culvert, that the intervention of equity is necessary to prevent a multiplicity of suits. The court erred in not sustaining the demurrer to the petition in so far as it sought relief by injunction. [400] 2. In order that notice to an agent may operate as notice to his principal, the subject-matter of the notice must be connected with the agency. Civil Code, §3027. As it does not appear from the petition that Pruitt’s agency was in any way connected with the culvert in question, the alleged conversations of plaintiff’s agents with him and the notice given him by them of the alleged nuisance caused by the culvert, as set out in the petition, should have been stricken on demurrer. 3. The alienee of the property causing a nuisance is responsible for a continuance of the same, provided he is requested to abate it before action is brought for its maintenance. Civil Code, §3862. Notice to such alienee that he will be held responsible for any damages subsequently caused by the nuisance will suffice in lieu of a specific request to abate. Central Railroad v. English, 73 Ga. 366. 4. Complaint is made in the motion for a new trial that the court erred in permitting witnesses for plaintiff to testify, over defendant’s objection, that Pruitt told them that Hall, defendant’s superintendent, had written to him that he, ITall, had received a letter written to him by the president of the plaintiff company in reference to the alleged nuisance. In the absence of any evidence tending to show that the duty of looking after the culvert and keeping it in repair came within the scope of Pruitt’s agency, this testimony was inadmissible as hearsay. 5. It is in the trial of equity causes only that the judge majr instruct and require the jury to find a special verdict of facts-only in the cause, and thereupon render a decree in accordance with the law applicable to the same. Civil Code, §4849'. Therefore, in view of our decision that the petition set forth no cause for the equitable relief sought, the court erred in submitting the questions of fact to the jury and in instructing them to find a special verdict of the facts onty, by answering such questions. With the equity feature eliminated, the case was one only for damages, and a general verdict was necessary, and hence it was error to enter any decree whatever upon the special verdict rendered by the jury. Judgment reversed. All the Justices conowr.