Peebles v. Perkins , 165 Ga. 159 ( 1927 )

Atkinson, J.

An owner of land caused it to be divided into lots and sold at public outcry with reference to a recorded plat showing the lots. On the land was a mill-pond; also a mill and gin operated by water-power afforded by the pond. In the division lot number one was the mill-pond which separately from the mill was valuable for fishing and hunting. The mill and gin were located on lot number three. The two lots were sold to separate persons on the same day, the sale of lot number one being first in the order of time. In normal conditions of rainfall and use of the water for the -mill and gin the water covered a-certain area. In subnormal conditions of rainfall the use of water necessary to operate the mill and gin would cause the water-covered area of lot number one to be reduced and to the extent that possibly not exceeding 15 per cent, of the normal area would be covered, thereby destroying the value of the pond for fishing. The deed conveying lot number one to the purchaser of it contained the clause: “It is a condition and covenant running with the land herein conveyed that the party of the second part, his heirs, executors, administrators, and assigns shall never change said dam of said pond in such a way as to interfere with the full and free use of the water running from said pond by the owner of the property known as lot No. .3 in said subdivision of the property of Mrs. Jennie McCants, and that the owner of the property known as No. three (3) of the subdivision of the Mrs. Jennie McCants property shall have the right to keep said dam in repair and to do such work thereon as may be necessary from time to time in order that he the owner of parcel No. three (3) of said subdivision of Mrs. McCants property may have the full use of the water in operating such gin, mills, and other property as are now on the property known as parcel No. three (3) of said Jennie McCants subdivision or that may hereafter be erected thereon. That the party of the second part, his heirs, and administrators, and assigns shall never have the right to so change said dam as to interfere with the operation 'of mills, gins, and property now located on property No. three (3) of Mrs. Jennie McCants subdivision or that may be erected thereon; and should changes be made by the party of second part, his heirs, executors, and administrators and assigns, it shall be with the consent of the owner of parcel No. three of the subdivision of Mrs. Jennie McCants property, and-shall be done without expense to the owner of said parcel after his consent thereto has been obtained.” Held:

1. This was a restrictive covenant with the grantor, embraced in the deed to the grantee of lot number one, essentially for the benefit of the lot number three.

2. The grantee of lot number one, by accepting the deed containing the covenant and possession of the property thereunder, became bound by the covenant without his having signed the deed. Civil Code (1910), § 4180; Phillips v. Blackwell, 164 Ga. 856 (139 S. E. 547).

3. Being of the character just indicated, the covenant enured to the benefit of the grantor and also to any purchaser from the grantor of lot number three. Phillips v. Blackwell, supra.

4. In the circumstances a purchaser of lot number three from the grantor could in equity sue the grantee of lot number one, to prevent a violation of the covenant. Rosen v. Wolff, 152 Ga. 578 (110 S. E. 877) ; Phillips v. Blackwell, supra. The case upon its facts is distinguishable from and the above ruling is not in conflict with the decisions in Gunter v. Mooney, 72 Ga. 205; Hawkins v. Central of Georgia Railway Co., 119 Ga. 159 (46 S. E. 82) ; Cooper v. Claxton, 122 Ga. 596 (50 S. E. 399) ; Douglass v. Williams Art Co., 143 Ga. 846 (85 S. E. 993) ; Shropshire v. Rainey, 150 Ga. 566 (104 S. E. 414).

5. Under the covenant the grantor or purchasers from him of lot number three have a superior right to the water in the pond, in the sense that in so far as necessary to operate the mill and gin the water in the pond may •be drawn off to the lowest limit that the dam as constructed at the time of the grant would permit, and that the grantee of lot number one or his successors in title could not alter the dam to prevent such use of the water without consent of the grantor as owner of lot number three or those claiming under him.

(o) The ease involving a special covenant, the general principles embodied in the Civil Code (1910), §§ 3633, 4475, relating to rights of upper and lower proprietors on unnavigable streams, have no application.

(h) It would be an unauthorized obstruction for the grantee of lot number one, or his grantee with notice of the restrictive covenant, to erect in the pond in front of the raceway a concrete dam that would prevent the flow of water through the raceway for operating the mill and gin at the lowest level that the dam would permit at the time of the grant.

6. Where the erection of such obstruction would result in causing the mill or gin to shut down and the damage flowing therefrom to be incalculable, a proper ease for injunctive relief would be presented. Injunctive relief would not be inappropriate because it might incidentally require the defendant to do the affirmative act of removing the obstruction. Phinizy v. Gardner, 159 Ga. 136 (125 S. E. 195), and eit.

7. The judge did hot err in refusing to enjoin the grantee of lot number three from using the water as complained of for operating his mill.

8. There was no error in overruling the demurrer to the petition to enjoin the maintenance of the obstruction to flow of water from the pond into the mill raceway.

9. The judge was authorized, under the pleadings and the evidence, to grant a temporary injunction against maintenance of the obstruction mentioned in the preceding division, but at the interlocutory hearing he was not authorized to grant a permanent injunction.

(а) The effect of the order was to grant a permanent injunction.

(б) The judgment granting the injunction is affirmed with direction that it be so modified as to enjoin the defendant only until the further order of court.

10. It has been held by this court: “When a judgment refusing an interloeutory injunction is brought to the Supreme Court for review, the trial judge is authorized to grant a supersedeas upon such terms as may by him be deemed necessary to preserve the rights of the parties until the judgment of the Supreme Court can be had. Civil Code, § 5502. It is left, however, in the sound leg'al discretion of the judge to grant or refuse it.” Prater v. Barge, 139 Ga. 801 (78 S. E. 119). On the subject generally see Tift v. Atlantic Coast Line Railroad Co., 161 Ga. 432 (6) (131 S. E. 46). Upon principle the above-quoted rule applies also where the exception is to the grant of a temporary injunction, and the correctness of the decision depends solely upon a question of law. The judge did not abuse his discretion in refusing a supersedeas in this case.

Nos. 6113, 6222. November 15, 1927.

Judgment affirmed in case No. 6113. Judgment affirmed with direction in case No. 6222.

All the Justices concur except Hill, J., dissenting. G. W. Foy, for plaintiffs in error. Homar Beeland, contra. -.