Opinion
25485, 25486.
ARGUED OCTOBER 15, 1969.
DECIDED DECEMBER 4, 1969. REHEARING DENIED DECEMBER 18, 1969.
Injunction. Muscogee Superior Court. Before Judge Land.
Hatcher, Stubbs, Land Rothschild, Albert W. Stubbs, for appellant.
Kelly, Champion Henson, Forrest L. Champion, Roberts Thornton, Troutman, Sams, Schroder Lockerman, William H. Schroder, James E. Joiner, for appellees.
Public policy prohibits a public utility from enforcing any contract or agreement repugnant to its public duty to serve all persons similarly situated impartially, uniformly and without discrimination.
ARGUED OCTOBER 15, 1969 — DECIDED DECEMBER 4, 1969 — REHEARING DENIED DECEMBER 18, 1969.
In 1906 a predecessor of the Georgia Power Company acquired a large tract of land in the Columbus, Georgia, area. Over the years, various mergers and consolidations took place by means of which the plaintiff power company became title holder of the land. Eventually the greater portion of this land was used for the development of Lake Oliver. There was, however, a thirty-acre tract which remained after the construction of Lake Oliver had been completed. This thirty acres served no useful purpose to the plaintiff and was declared surplus land. In March of 1966 the thirty-acre tract located in the City of Columbus, Georgia, was sold to Chester C. Murray, subject to the following restrictive covenant: "This deed is also made subject to the following provisions, conditions, and covenants which shall be covenants running with the land and binding upon the said Chester C. Murray and his successors in title, to wit: (a) The said Chester C. Murray covenants that any dwelling or other building used in connection therewith and placed or located on the property conveyed herewith and described hereinabove shall utilize electric energy supplied by Georgia Power Company, its successors or assigns, for the operation of all appliances, including but not limited to, lighting, heating, air conditioning, cooking, water heating, refrigeration and other similar appliances. (b) The 29.968 acres conveyed herein shall be subdivided into not less than 35 lots approximately equal in size and shall be used for residential purposes only. No dwelling shall occupy more than one of said lots, nor shall more than one of said lots be used for one residence."
Chester C. Murray then divided the property into residential lots that were offered for sale to the public. As sales took place, Murray incorporated the restrictive covenant set forth above in his deeds to purchasers, including the defendant individuals. Prior to the sale of any of the lots, a sign had been erected at the entry to the subdivision with the prominent notation "Total Electric Homes" and the power company had installed an underground wiring system to distribute electricity in the subdivision in reliance on the restrictive covenant.
The gas company knew of the restrictive covenant but nevertheless sought to serve the subdivision with gas and solicited some customers. It began construction of a gas main into the subdivision. As soon as the plaintiff became aware of the construction, it filed suit against the gas company seeking to enjoin it from constructing a gas line in the subdivision and from seeking to serve gas to any lot owner and to enjoin the named individuals from receiving gas service. The complaint alleges that the restrictive covenant is reasonable and is a valuable asset of the plaintiff; that its damages are irreparable; that it has no adequate remedy at law; that this action will avoid a multiplicity of suits; that the gas company has acted in bad faith, is being stubbornly litigious and is causing the plaintiff unnecessary trouble and expense.
After a hearing, the trial judge found from the evidence that the restrictive covenant was valid, that it ran with the land, that it was binding upon the successors in title to Chester C. Murray; that the restrictive covenant is not in general restraint of trade and is enforceable; and that the gas company had engaged in an active course of conduct seeking to induce the owners of lots in the subdivision to violate the terms of the restrictive covenant. The trial court issued a temporary restraining order enjoining the defendant gas company from soliciting owners of lots in the subdivision for gas service and from inducing said owners to violate the terms of the restrictive covenant. All other prayers for temporary restraining orders were denied. The appeals are from that judgment.
The plaintiff is a public utility and is vested with a franchise granted by the City of Columbus to furnish service to all customers desiring the same in said city. "An electric company which is a public utility is obliged to treat and serve alike, with impartiality and uniformity, and without discrimination, all members of the public which it professes to serve who are similarly situated and who comply with proper conditions precedent to the furnishing of service." 29 CJS 997, § 27. Ga. Public Service Commission v. Ga. Power Co., 182 Ga. 706, 715 ( 186 S.E. 839); Southern Bell Tel. c. Co. v. Beach, 8 Ga. App. 720 (1) ( 70 S.E. 137); 43 AmJur 586, 599, §§ 22, 42. It cannot enforce any contract or agreement repugnant to this public duty. The covenant under attack here requires the owners of residential property in the Lake Oliver Subdivision to use electric service exclusively for the "operation of all appliances, including but not limited to, lighting, heating, air conditioning, cooking, water heating, refrigeration and other similar appliances." The owners of other residential property served by the plaintiff may select other types of energy for the operation of any of these appliances. Consequently, the plaintiff has imposed upon the owners of property in the Lake Oliver Subdivision a restriction not imposed upon its other residential customers. This is contrary to its public duty and obligation to serve all members of the public similarly situated impartially, uniformly and without discrimination. Therefore, the covenant is unenforceable. It is inimical to the plaintiff's public duty and is contrary to public policy.
The fact that the plaintiff is disposing of surplus property in its private capacity does not authorize the enforcement of a condition ancillary thereto which impairs its public duty in the furnishing of electric service. Ga. Power Co. v. Ga. Public Service Commission, 211 Ga. 223, 228 ( 85 S.E.2d 14).
Judgment on main appeal reversed; cross appeal dismissed. All the Justices concur. Felton, J., disqualified.