Simmons v. Lindsay , 144 Ga. 845 ( 1916 )

Lumpkin, J.

(After stating the foregoing facts.)

1. The deed under which the plaintiffs claim was made by Willis Selman and James W. Selman to themselves and others as trustees of the church. James W. Selman, one of the grantors, and also, in his capacity as trustee, one of the grantees, attested the deed as a justice of the peace; and two unofficial witnesses also attested it. On this attestation it was recorded. It appearing that the original deed was lost, the presiding judge admitted, over objection, a certified copy from the record. It is clear that a man can not be at once a grantor as an individual, a grantee as trustee, and an attesting witness as a justice of the peace, and thus authorize the recording of the deed. Not being properly recorded, a certified copy from the record could not be introduced in evidence, and its admission was error. Whether, under the averments of the answer, the introduction of the certified copy would require a reversal need not be considered.

2. The sole prayer fox injunction was that the defendant be enjoined “from maintaining said obstruction across said right of way.” It is declared by the Civil Code (1910), § 5499: “An injunction can only restrain; it can not compel a party to perform an act. It may restrain until performance.” It has been held, that, if the main purpose of an equitable petition is to compel the performance of an act, injunction can not be used as a remedy to accomplish that purpose; but that while the court can not, on an interlocutory hearing, issue a purely mandatory injunction, he can grant an injunction the essential nature of which is to restrain, although in yielding obedience to the restraint the plaintiff may be incidentally required to perform some act. Goodrich v. Georgia R. Co., 115 Ga. 340 (41 S. E. 659). In Georgia Pacific Ry. Co. v. Mayor etc. of Douglasville, 75 Ga. 828, it was held that it was too late, after a bridge had been completed, to obtain an injunction to prevent its completion; and that it was not within the power of the chancellor at chambers to grant a mandatory order requiring a municipal corporation to remodel or remove any part of a bridge forming a part of one of its streets. In Russell v. Napier, 80 Ga. 77 (4 S. E. 857), where a fence had been erected across a private right of way, it was said, that, while the plaintiff in error might sue for this nuisance, a court of equity might interpose and stop it by injunction; that a mandatory injunction would make the defendant remove any obstruction, and a final injunction would prevent him from thereafter interfering with the plaintiff’s rights. The ease arose on demurrer to an equitable petition which sought to obtain specific performance and injunction. It was not brought to this court by exception to the grant of an interlocutory injunction; and what was said by Blandford, Justice, in the opinion must be taken in connection with the facts of the case. It can not be treated as a general adjudication that a mandatory injunction may be granted at an interlocutory hearing to compel the removal of a fence already completed across a private way, where the main purpose is not to restrain a party from doing something, but to compel him to do an affirmative act; and especially where there is an adequate legal remedy pf which he may avail himself. If there is essential conflict between that decision and the previous one in the 75 Ga., supra, the one last mentioned, which was earlier in point of time, must prevail.

Provision is made by the code for abating public or private nuisances. Civil Code (1910), §§ 5329, 5338; Ruff v. Phillips, 50 Ga. 130; Powell v. Foster, 59 Ga. 790. It has been declared that such a remedy is available to cause the removal of an obstruction from a private way. Salter v. Taylor, 55 Ga. 310; Hart v. Taylor, 61 Ga. 156; Holmes v. Jones, 80 Ga. 659 (7 S. E. 168). Persons who desire to abate a nuisance, either public or' private, should resort to the remedy provided by the code, unless special facts are alleged showing that such remedy is inadequate. Broomhead v. Grant, 83 Ga. 451, 453 (10 S. E. 116). We need not here consider the remedy for removing obstructions from private ways, provided by the Civil Code (1910), § 825. In the present case it was not made to appear why one of the remedies above indicated was not sufficient so far as the present plaintiffs and the church which they represent are concerned. The sole prayer for injunction in its nature sought affirmative rather than preventive relief. It was not to enjoin interference with the use of the water of the spring, but to enjoin the maintenance of the fence.

It is not apparent what authority the trustees of the church would have by an equitable proceeding to set up rights on behalf of the children attending a public school near by, or on behalf of the public. In so far as the use of the way might throw light on its existence and location and the rights of the plaintiffs, perhaps they might be shown; but relief on behalf of the general public or the school children could not be granted in this proceeding.

Judgment reversed.

All the Justices concur, except