Hancock v. Tharpe , 1908 Ga. LEXIS 201 ( 1908 )

Beck, J.

(After stating the facts.) We are of the opinion that under the pleadings and evidence in this case the court should have granted an injunction restraining the defendants from any further interference with the telephone line and wires in controversy, tending to impair or destroy their utility for the purposes in contemplation of the parties at the time of the joint construction of the line by the plaintiff and defendants in this case. If the petition as it stood originally was open to the objection that the relief sought was a mandatory injunction, a remedy to which under our law the plaintiff would not be entitled, the amendment which was offered and allowed obviates this objection; and under the pleadings as amended, the plaintiff is clearly seeking to prevent the defendants from any further act destructive of the property, in ease he should repair the defects already caused by the unauthorized acts of the defendants. We apprehend that the judge below was led into the error of refusing the injunction sought, because of the fact that counsel for the petitioner based his right to injunctive relief very largely, if not entirety, on the theory that the plaintiff and the defendants constituted a partnership in the matter of the use, enjoyment, an'd ownership of the telephone line. The contention of counsel for the plaintiff, that his client and the defendants in the case‘were partners relative to'the property in question, is not well founded. It is not necessary, nor would it be proper, to enter into a discussion of what constitutes a partnership, and from what state of facts that relationship arises. It is sufficient to say that, upon the application of the simplest and plainest of the primary tests, the foundation for the contention that a partnership existed is ut once destroyed: the element of agency is entirety wanting. No one of the members of the alleged firm could by any of his acts have bound the other members by a contract in their name by which they would have incurred liability for debts; there was no provision made for equation or division of profits. As a matter of fact, beyond the usé of the telephone line and the convenience and advantages to be derived from such use, no profits were in contemplation from which there could have been a division either equally or proportionally. Nor do wo see that the death of either of the parties would have affected a continuation of the joint use of the property. And in addition to all of this, we find no evidence in the record manifesting an intention upon the part of any of the persons interested in the joint enterprise to create a partnership inter se. Other tests.might be applied which would tend effectually to show that there was no partnership.

But the destruction of the foundation of the plaintiff’s contention that a partnership existed between the parties does not necessarily destroy his right to injunctive relief, if that right is made manifest by the evidence which was admissible under the pleadings.' Without deciding whether these parties were strictly and technically tenants in common of the property in question, their relationship to it was so closely analogous to the rights and relationship of tenants in common in and to the property held in common, that, in so far as the relief sought in this case is concerned, they may be treated as tenants in common, and as such entitled to such protection in a court of equity as one tenant in common is ■ entitled to against another who seeks by an unlawful act to destroy or interfere with the use of the common property, or unlawfully to deprive his cotenant of the legitimate use and .enjojunent of the common property. We will not enter upon a discussion of what would be a lawful use and enjojunent of the property in controversy under all circumstances. “Perhaps no more specific rule as to what is a legitimate use and enjoyment of the common property may be laid down than that each cotenant may use and enjoy the common property in a reasonable manner to the extent of his own interest, but can not in any way impair or interfere with the equal right of his cotenants to a similar use and enjoyment. What is a reasonable use will obviously depend upon the nature of the property.” 17 Am. & Eng. Enc. Law (2d ed.), 671. While the act of the defendants in this case in cutting the wires of the telephone may have been intended to prevent improper and unlawful uses of the line, it certainly had the effect also of destroying the lawful use and enjoyment of the same. And when the plaintiff resorted to equity to prevent the destruction by the tenants in common of the lawful use and enjoyment of the property, he was asking nothing more than the court lias jurisdiction, and should stand ready, • to give. There is ample authority for the proposition that injunction is a proper remedy in cases of unlawful injury to common property, or of interference with its. use and enjoyment. 17 Am. & Eng. Enc. Law (2d ed.) 705, and cases there cited.

In the case of Swift v. Coker, 83 Ga. 789, Mr. Justice Simmons, who delivered the opinion in that case, speaking with reference to obstructions placed by one tenant in common in an alley held by the parties in common, said, “One tenant in common has no more right to obstruct it [the alley], over the objections of the other tenants, than he would have to obstruct a public alley over the objection of the town authorities. Nor do we think that the fact that the plaintiffs were not using the alley at the time the obstruction was erected, and therefore were not damaged by the obstruction, makes any difference in law. The plaintiffs are entitled to stand on their legal rights, whether they are damaged or not, and to object to the alley being diverted from the use for which it was originally intended and which was stipulated in the deeds.” And it was there held that the party complainant seeking injunctive relief was entitled to that remedy as against his cotenant who sought to obstruct the way in question. And under' the doctrine stated and maintained in that case, and the other authorities to which we have referred, the petitioner in the present case was entitled to an injunction against further acts of interference upon the part of the defendants with the use and enjoyment of the property in controversy.

If it be true, as defendants in this case insist, that the plaintiff himself' is making such use of his telephone, -or permitting such use of it by others, as would constitute an abuse of the privilege of using the line, the defendants themselves, under the principles ruled in this case, will not be without a remedy, — a remedy which the same tribunal as the plaintiff has restorted to in the present action is not without jurisdiction to apply. Annihilation of the property, the remedy which the defendants have sought by themselves to apply, may be very simple and easy of application; but it is entirely too drastic, and their hands must be withheld.

Judgment reversed.

All the Justices concur, except Holden, J., who did not preside.