Ellis v. Campbell

211 Ga. 699 (1955)

88 S.E.2d 389

ELLIS et al. v. CAMPBELL et al.

18975.

Supreme Court of Georgia.

Argued June 13, 1955.

Decided July 11, 1955.

Max R. McGlamry, Wm. A. Leonard, for plaintiffs in error.

J. Willard Register, Young, Hollis, Fort & Drake, contra.

DUCKWORTH, Chief Justice.

1. While fully recognizing the rule that mandatory injunctions will not issue (Code § 55-110; Thomas v. Hawkins, 20 Ga. 126; Georgia Pac. Ry. v. Town of Douglasville, 75 Ga. 828; Fisher v. Georgia Vitrified Brick & Clay Co., 121 Ga. 621, 49 S.E. 679; Simmons v. Lindsay, 144 Ga. 845, 88 S. E. 199), yet where, as here, a continuing injury could be stopped, although in stopping it the wrongdoer would be required to take affirmative action, the injury may be enjoined. *700 Goodrich v. Georgia R. & Bkg. Co., 115 Ga. 340 (41 S. E. 659); Oostanaula Mining Co. v. Miller, 145 Ga. 90 (88 S. E. 562); Sweetman v. Owens, 147 Ga. 436 (94 S. E. 542); Bush v. City of Gainesville, 206 Ga. 182 (56 S. E. 2d 478).

2. That the recorded restriction, to the effect that only one house be erected upon each lot, was here violated by the placing of three houses upon one lot is undisputed. There is, therefore, no issue of fact upon this decisive point authorizing the exercise of discretion as in Tift v. Farmers Bank of Tifton, 210 Ga. 35 (77 S. E. 2d 505).

3. Nor was there laches or failure to act in due time sufficient to deny relief to the petitioner, in that over a period of thirty days three houses, already built, were hauled upon the lot. They can just as easily be hauled off as they were hauled upon the lot, and if that is necessary to stop the unlawful injury of the petitioner, it must be done.

Judgment reversed. All the Justices concur.