Golightly v. Atlanta & West Point Railroad , 148 Ga. 20 ( 1918 )

Atkinson, J.

1. Where testimony of an expert witness, referring to “this plat” and purporting to interpret the plat, was .rejected by the court as an unauthorized expression of opinion, an assignment of error upon this ruling, which fails to set forth a copy of the plat or its substance, is too indefinite to present any question for decision. A reference, in the brief of evidence embodied in the bill of exceptions, to a “plat which is marked ‘J. W. S.’ on the face and is as follows: ” followed by a plat not containing such initials as those to which the witness referred, will not suffice to make the assignment of error definite, the plat so attached being one among several plats of the same place, which were not identical.

2. Following the decision of this court in Brown v. Atlanta Railway & Power Co., 113 Ga. 462 (39 S. E. 71), this court will not control the discretion of the trial judge in refusing to grant an interlocutory injunction. which would interfere with a public improvement in which no part of the property of the applicant is actually to he taken, although there be evidence authorizing a finding that the property of the applicant would be damaged by the improvement. Accordingly, there was no error in refusing to enjoin excavation in the streets.

No. 549. April 11, 1918.

Petition .for injunction. Before Judge Pendleton. Fulton superior court. May 31, 1917.

J. A. Drake and J. H. Longino, for plaintiff. Brewster, Howell & Heyman and Mark Bolding, for defendant.

3. It appears from the record that no supersedeas was granted, and that at the time of the hearing of the case in the Supreme Court the dirt which was removed from the streets during the process of excavation had been used in constructing the underpass, thereby causing the question of a right to injunction to prevent such use to become moot; and no decision will be rendered on that question.

4. Injunction was sought also to prevent the construction of a railroad embankment along East Broad Street, upon which the plaintiff’s property abutted. The judge was authorized to hold, upon conflicting evidence, that the location of the proposed railroad embankment was on the property of the defendant, and not in the street; and there was no abuse of discretion in refusing an injunction.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.