Opinion
16361.
OCTOBER 13, 1948.
Petition for injunction. Before Judge Hendrix. Fulton Superior Court. June 25, 1948.
Fine Efurd, for plaintiff.
John T. Walker, pro se.
Where, as in this case, the sole relief sought is the grant of an injunction mandatory in its nature, it is not error to sustain a general demurrer to the petition.
No. 16361. OCTOBER 13, 1948.
The plaintiff's petition alleged: The defendants, Walker and Henderson, are the owners of described lands, and the plaintiff is the owner of property adjoining that of the defendants on the southwest side thereof. The defendant, H. L. Shackleford, is predecessor in title of Walker and Henderson, and caused an excavation to be made "to a depth of approximately 12 feet and for a distance of 48 feet along the property of the plaintiff." The excavations have caused, and are now causing, the property and land owned by the plaintiff to cave in. The defendants, Walker and Henderson, owe to the plaintiff lateral support, so that the plaintiff's land will not continue to slide, cave in, and be washed away. The property of the defendants would, in its natural state, provide lateral support for the property of the plaintiff. The excavations made by the defendant Shackleford were done in a negligent manner, in that he failed to take precautions to protect the property of the plaintiff by the erection of a retaining wall so as to keep and prevent the land of the plaintiff from deteriorating, washing, and caving in. By amendment it was alleged that the defendants, Walker and Henderson, in owning, occupying, and controlling their property as described, are acting in a negligent manner by allowing their property to remain excavated below the level of the property of the plaintiff, causing it to wash, slide, cave in, and deteriorate. The defendants owe to the plaintiff the duty and obligation of lateral support in a manner wherein the property of the plaintiff will not be damaged in the future. The defendants are negligent in allowing the lands owned by them to remain in an unnatural state. Immeasurable damages have accrued from the negligent acts of the defendants, and future damages to the lands of the plaintiff will be immeasurable; and if the acts of the defendants, Walker and Henderson, continue, the plaintiff will suffer irreparable damage to its property. The prayers were for process; that the defendants be enjoined from "continuing to endanger the property of the plaintiff, . . from continuing to fail to give lateral support to the property of the plaintiff . . from causing the property and land of the plaintiff to slide, cave in, wash and deteriorate;" and for "such other and further relief as will in law and equity be just, meet and proper." The general demurrers of the defendants, Walker and Henderson, were sustained, and the exception is to this judgment.
The plaintiff in this case is clearly not seeking an injunction to restrain present acts. The actual relief sought is the performance of acts by the defendants, which it is alleged are necessary to preserve the plaintiff's property from injury caused by excavations made by Shackleford prior to the time the defendants, Walker and Henderson, acquired title to their property.
The Code, § 55-110, provides: "An injunction may only restrain; it may not compel a party to perform an act. It may restrain until performance." In construing this section of the Code, it has been held by this court that the trial court may grant an order, "the essential nature of which is to restrain, although in yielding obedience to the restraint the defendant may incidentally be compelled to perform some act." Goodrich v. Ga. R. Banking Co., 115 Ga. 340 ( 41 S.E. 659); Westbrook v. Comer, 197 Ga. 433 (6) ( 29 S.E.2d 574). Such is not the relief sought here. The plaintiff seeks an order of the court to require the defendants to do some act to preserve the plaintiff's property. Such an order, if granted, would be a mandatory injunction. Mandatory injunctions are prohibited by the laws of this State. Ga. Power Co. v. Rome, 172 Ga. 15 (8) ( 157 S.E. 283); Braswell v. Palmer, 191 Ga. 262 (4) ( 11 S.E.2d 889).
If the petition could be construed as seeking an injunction against the excavation complained of, it comes too late, since an "injunction will not be granted to restrain acts already completed." Shurley v. Black, 156 Ga. 684 ( 119 S.E. 618). See also Ga. Pacific Ry. v. Douglasville, 75 Ga. 828; Simmons v. Lindsay, 144 Ga. 848 ( 88 S.E. 199); Reid v. McRae, 190 Ga. 323 ( 9 S.E.2d 176).
The court did not err in sustaining the general demurrer to the petition.
Judgment affirmed. All the Justices concur, except Bell, J., absent on account of illness.