Opinion
21659.
ARGUED MAY 15, 1962.
DECIDED JUNE 25, 1962.
Refusal of injunction. Chatham Superior Court. Before Judge Harrison.
John L. Watson, Jr., Hugh P. Futrell, Jr., Kemp Watson, for plaintiff in error.
Robert Smalley, John B. Miller, contra.
When error is assigned on the denial of an interlocutory injunction, where there is a failure to prove, or conflict as to, facts material to the issues involved and upon which the plaintiff in error predicated his contentions, this court will not control the discretionary action exercised by the trial judge.
ARGUED MAY 15, 1962 — DECIDED JUNE 25, 1962.
W. P. Price brought his suit for injunction and $25,000 damages against Empire Land Company (hereinafter referred to as Empire) and the Central of Georgia Railway Company (hereinafter referred to as Central) in the Superior Court of Chatham County. Price sought recovery of damages for injuries and damages he alleged were sustained by him by reason of certain acts of trespass, and injunctive relief, both temporary and permanent, for alleged acts of continuing trespass.
The pertinent averments of the petition were: that the defendants own lands joining those of the plaintiff on the east and south; that the defendants have graded their land so that it drains into three large sumps constructed by said defendants; that they have so filled and graded the property as to completely fill the natural drainage area; that the area immediately abutting the plaintiff's land at the point of natural drainage slopes to a height of 58 feet, while on the south line it slopes to a height of 25 feet; that the defendants have connected all the surface drainage of their land by a system of ditches so that all water falling on the area concentrates in the three large sumps which are in turn joined to each other by 54-inch pipes; that one of the pipes, at a point 20 feet above the natural grade level, discharges the water into a concrete flume which slopes to the plaintiff's property line; that the waters so falling enter into the flume with greater force than the natural flow, and the defendants by their actions are preventing and will prevent the waters from entering the plaintiff's lands in the natural and usual flow.
The plaintiff further alleged: that the defendants by so grading and filling the area concentrate the natural spring and rain waters so that in such form they flow upon the lands of the plaintiff; that this causes dirt and rocks to fall on the plaintiff's lands to his great injury and further results in the rain water carrying large amounts of earth and mud which are deposited on the plaintiff's land; that the waters, after a heavy rain, will enter with such force and violence that they will wash, erode and deposit dirt and mud on the plaintiff's land to his great injury and damage; that the water from the spring, flowing from the defendants' land to those of the plaintiff, was pure and suitable for drinking, but now is muddy and no longer suitable for drinking.
Other averments of the plaintiff's petition were: that the stream was non-navigable; that unless the defendants are temporarily and permanently enjoined they will continue to divert the waters so that the stream is polluted, to concentrate and discharge waters with great force and violence onto the lands of the plaintiff, to grade and fill so that dirt and rocks will fall on the plaintiff's lands, and to discharge water so that it will not stay within the stream banks and will wash mud and silt; that Central and Empire conspired and acted together to jointly trespass upon the plaintiff's lands; that prior to the aforesaid acts the fair market value of the lands of the plaintiff was $80,000, subsequently to said acts it is $55,000; hence, the plaintiff has been damaged in the sum of $25,000.
The prayers of the petition were that the defendants be temporarily and permanently enjoined from: diverting surface waters into the spring causing it to be muddy; causing dirt and rocks to fall upon the lands of the plaintiff; concentrating waters and discharging them in a manner other than the natural and usual manner; allowing waters to come upon the plaintiff's land so they will leave the spring creek bed; discharging mud and silt upon the lands of the plaintiff; interfering with the natural flow of waters and filling the natural drainage area of the water. The plaintiff further prayed for damages in the sum of $25,000 for injury and damage sustained; for a rule nisi, and "such other and further relief as may be equitable and just."
On February 13, 1962, the trial judge issued an ex parte restraining order and an order nisi setting a hearing for the temporary restraining order on February 26, 1962. The matter came on for hearing with no answer or defensive pleading filed. The plaintiff introduced evidence in support of his petition, and rested; whereupon, the defendants moved orally for a dissolution of the ex parte restraining order and a denial of the interlocutory injunction. On the same day, the trial judge issued an order dissolving and vacating the ex parte restraining order and denying the prayers for an interlocutory injunction.
The case comes to this court on a bill of exceptions assigning error on the order of the trial judge denying the temporary relief sought.
The following evidence was adduced from testimony given solely by witnesses called by the plaintiff.
The plaintiff owns a one-fourth portion of the land in question, bounded on the south and east by lands owned by the defendant Empire. The defendants had graded and filled their property so that the surface water there drained into ditches and flowed principally into three large sump holes which are joined by a system of interconnecting 54-inch drainage pipes. This drainage system was so designed that the flow was directed from the sumps down a 54-inch drainage pipe which, at a point some 20 feet above the natural drainage level, fed the waters into a flume or chute which in turn led into a stream fed by a spring which meandered through the defendants' and the plaintiff's lands. The stream was a natural drain for the lands.
There was some discrepancy in the testimony as to how far the toe of the flume was from the land of the plaintiff. There was material conflict as to whether the flume fed into the old stream, the plaintiff testifying that it was some 15 or 16 feet south of the old bed, while an engineer testified it did reach the stream bed but at an angle. There was testimony to the effect that as a result there was some spillage and overflow at the junction of the flume and the stream. The plaintiff testified that this made his land muddy and marshy, but not to what extent or how he was damaged. He also testified that mud was dumped on his land by the stream resultant from the grading operations, although he conceded that a portion of that residue or silt was due to drainage from other lands adjoining his on the north and west, and did not show that the damage was continuing.
There was evidence that the stream itself was formerly clear, suitable for drinking, while subsequently to the defendants' operations it had become muddy. However, the plaintiff stated that he did not intend to use the stream for drinking purposes. There was testimony by an engineer that the grading of the defendants' property had increased the drainage area which flowed into the stream, but he later admitted that there might be little or no increase at all.
There was testimony that the concentration of water due to the sumps, coupled with the flow through the pipes as opposed to the natural flow over earth, would lead to increased velocity and volume at the point where the water reached the plaintiff's land. No showing was made as to whether this would cause the stream to overflow its banks except during a flash flood under very rare circumstances. There was no positive showing as to the extent or continuance of damages. The plaintiff merely said: "I'm getting more than I used to get."
The plaintiff testified that the defendants graded a ridge which formerly prevented some of the water from flowing down on his lands, but on cross-examination neither he nor the engineer could reconcile this with a map showing contour lines. The plaintiff further complained about a loose fill that made his land "swampy." This testimony was corroborated by the before-mentioned engineer who said that there was some seepage out of the base of the fill, but he further stated that this would be alleviated as the defendants made further improvements (paving and sodding) and could be corrected by building a French drain.
The testimony of one of the officers of Empire and Central, called for the purpose of cross-examination, was that Empire was a totally owned subsidiary of Central; that Central engineers worked on the project and in effect that Central and Empire worked together to plan the area; that the plaintiff knew of the industrial purposes for which the defendants acquired their lands and likewise acquired his land for industrial or business purposes. There was evidence that the plaintiff paid $23,000 for the land in question and $30,000 for land reaching to the expressway. He had recovered $26,000 through awards from condemnation by the State Highway Department for right of way purposes.
No precept is more firmly established in our law than that this court will not disturb or control the trial judge's discretion in either denying or granting an interlocutory injunction, in the absence of legal abuse of such discretion. Cubbedge Hazlehurst v. Adams, 42 Ga. 124; Cherokee Iron Co. v. Jones, 52 Ga. 276; Loadman v. Davis, 210 Ga. 520 ( 81 S.E.2d 465); Dozier v. Mangham, 215 Ga. 718 ( 113 S.E.2d 212). This is true where there is any conflict as to material issues of the case. Jones v. Johnson, 60 Ga. 260; Roughton v. Thiele Kaolin Co., 211 Ga. 15 ( 83 S.E.2d 590); Hutchins v. Williams, 212 Ga. 754 ( 95 S.E.2d 674). The reasons for this rule are succinctly and pointedly brought out in the case of Kirtland v. Mayor c. of Macon, 62 Ga. 747, 750, where Justice Bleckley stated: "Injunction ad interim is a part of equity police. It is a device to keep the parties in order to prevent one from hurting the other whilst their respective rights are under adjudication. There is often a cry for police when there is no real danger. The equity of a bill is not lost because an injunction is denied, or because it is not applied for before the final hearing." (Emphasis supplied).
Equity intervenes by grant of an interlocutory injunction to prevent irreparable damage to one of the parties and to maintain the status quo until a final determination is made. Mobley v. Brundage, 170 Ga. 829 ( 154 S.E. 452); City of Elberton v. Hobbs, 121 Ga. 749 ( 49 S.E. 779); Edwards v. United Food Brokers Inc., 195 Ga. 1, 8 ( 22 S.E.2d 812); First Fed. Savings c. Assn. v. Owen, 210 Ga. 424 ( 80 S.E.2d 169). In short, there must be some vital necessity for the injunction so that one of the parties will not be damaged and left without adequate remedy.
In this case, the plaintiff attempted to introduce evidence to support his contentions that the actions of the defendants materially contributed to the pollution of the stream, to the seepage of water and the depositing of mud upon his lands, and that water from the flume hitting at a point outside the old stream bed caused water to flow unnaturally over his land, causing swampy conditions, erosion and washing, all to the great hurt and damage of the plaintiff.
To some degree, the plaintiff proved his case as laid without conflict. However, there was material conflict as to the quantum of damages, as well as the continuance, or certainty of the continuing nature, of the damages during the interim period from the hearing until the time of the final disposition of the case. The testimony of the witnesses was not at all conclusive as to the manner, extent or certainty of damage to the plaintiff's property, nor that such damage would be irreparable. Most important, the evidence did not disclose that an injunction would be necessary to protect the plaintiff's interests during the pendency of the suit.
Upon a careful review of the record here before us, whatever may be the rights of the respective parties on a trial of the case, we can not say the trial judge abused his discretion in denying the interlocutory injunction.
Judgment affirmed. All the Justices concur.