Oostanaula Mining Co. v. Miller

Hill, J. The defendant, an upper riparian proprietor, erected a concrete dam across a stream, and by means of a pipe conveyed water therefrom for use in washing ores, etc. A lower proprietor, through whose pasture the stream ran, filed a petition seeking damages and an injunction, in which he alleged that the defendant, by the acts mentioned, had practically diverted the entire flow of the water from its natural . channel, leaving none for his use in watering stock, etc. There was a direct conflict in the evidence as to the extent of the diversion of the water. The judge granted an injunction to permanently restrain its diversion, unless the defendant should, within fifteen days, run a pipe not less than one half inch in diameter from the dam to the pasture of the plaintiff,. and there ei-ect a concrete retainer, so that the water might pass continuously from the dam through the pipe to this retainer. Held, that the evidence authorized the granting of a temporary injunction restraining the diversion of the water. [91] April 13, 1916. Injunction. Before Judge Fite. Gordon superior court. August 30,1915. J. Q. B. Erwin, for plaintiff in error. J. J. Copeland and W. C. Martin, contra. (а) Allowing the defendant an option to prevent the injunction from going into effect by complying with certain terms amounted to "no more than the grant of the injunction itself; and there was no special exception to the harshness or impropriety of the terms imposed, but only to the granting of the order. (б) Under its facts, the present case is very similar to that of Goodrich v. Georgia Railroad &c. Co., 115 Ga. 340 (41 S. E. 659) ; and the main purpose of the injunction was not to require affirmative action, such as the tearing down of the dam, or the like, but to restrain the diversion of the water by the means stated. It was therefore within the ruling in that case, and not mandatory in character. (c) The court was without authority to grant a permanent injunction at chambers on an interlocutory hearing. Therefore direction is given that the order be so changed as to state that the injunction is to be continued until the trial, or the further order of the court. Judgment affirmed, with direction. All the Justices concur.