City of Albany v. James S. Rivers, Inc.

124 S.E.2d 388, 217 Ga. 674, 1962 Ga. LEXIS 359

• Court: Supreme Court of Georgia
• Decided: February 20, 1962
• Docket: 21556, 21557
• Status: Published

Opinion

Duckworth, Chief Justice.

1. The petition praying for equitable relief and alleging that the petitioner has constructed a private sewer after obtaining easements from the State of Georgia on U. S. Highway 19 from its property line to the city limits of the defendant, the City of Albany, at the time of construction, the same now having been taken into the city limits of the defendant; that the defendant is now claiming ownership and control of the private sewer and allowing other property owners to tap onto said sewer, which is an ' arbitrary interference with private property, and irreparable injury will result unless the defendant is enjoined from making further connections to said sewer, the same amounting to the taking of private property without first paying just and adequate compensation therefor, and is otherwise violative of other named provisions of the Constitution of 1945 — it alleges a cause of action for equitable relief, and the lower court did not err in overruling the demurrers thereto, which ruling is excepted to in the main bill of exceptions.

Argued February 12, 1962 Decided February 20, 1962. H. G. Raids, for plaintiff in error. Durden & Durden, contra.

2. The evidence admitted on the interlocutory hearing disclosing that the easements were secured in the name of the defendant who is maintaining the sewer and the defendant had enlarged it from an 8-inch pipe to a 10-inch pipe for 4,040 feet, at a cost of more than $3,000 — the court did not err in dissolving the restraining order and denying the injunction, since the evidence was clearly in conflict as to the ownership of said sewer; which judgment denying the injunction is excepted to in the cross-bill of exceptions.

Judgment affirmed on the main and cross bills.

All the Justices concur.