City of Elberton v. Pearle Cotton Mills

Supreme Court of Georgia

City of Elberton v. Pearle Cotton Mills

50 S.E. 977, 123 Ga. 1, 1905 Ga. LEXIS 356

Supreme Court of Georgia·Decided May 12, 1905·Published·Cited by 17 cases

Opinion

Lumpkin, J.

(After stating the facts.) 1, 2. While it is true that upon proper application, made in due time, equity will enjoin a municipal corporation from taking a water supply from a stream, in violation of the rights of a riparian owner further down such stream, and to his damage (City of Elberton v. Hobbs, 121 Ga. 749, 750); nevertheless the complaining owner must act with reasonable promptness. If he waits until the municipal corporation has sold bonds, bought land bordering upon the stream at a point above his property for the purpose of constructing waterworks and using water from the stream, and until at large expense a system of water-pipes has been laid from the stream to the city and through the streets, and, though having full knowledge of all the facts, makes no objection, gives no notice of any claim of injury, and begins no proceeding till after the pipes have been connected with the stream, and the waterworks have actually begun operation, he is not entitled to an interlocutory injunction which will stop the use of the water by the city. This is especially true where the evidence as to whether any damage would result to the property or not is conflicting. The point here determined was not raised or decided in the case of the Gity of Elberton v. Robbs, supra (which was begun some months earlier), or in Chestatee Pyrites Co. v. Cavenders Creck Co., 118 Ga. 255. See Griffin v. Augusta & Knoxville Railroad, 70 Ga. 164; Wood v. Macon & Brunswick Railroad, 68 Ga. 539 ; Darnell v. Southern Marble Co., 94 Ga. 231 (4); 2 Pom. Eq. Jur. (2d ed.) §817; 3 Id. § 1359; 1 Beach, Inj. §44; 1 High, Inj. (3d ed.) §7.

3. There being but .three stockholders of the plaintiff, who we;re also its officers, knowledge by them of the facts affected the company with knowledge. Ga. R. Co. v. Hamilton, 59 Ga. 174 (3); Mitchell v. Southwestern Railroad, 75 Ga. 398; s. c. 69 Ga. 114, 124; Guarantee Co. v. East Rome Town Co., 96 Ga. 511.

Judgment reversed.

All the Justices concur, except Gandler, J., absent.

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Lumpkin, J.

(After stating the facts.) 1, 2. While it is true that upon proper application, made in due time, equity will enjoin a municipal corporation from taking a water supply from a stream, in violation of the rights of a riparian owner further down such stream, and to his damage (City of Elberton v. Hobbs, 121 Ga. 749, 750); nevertheless the complaining owner must act with reasonable promptness. If he waits until the municipal corporation has sold bonds, bought land bordering upon the stream at a point above his property for the purpose of constructing waterworks and using water from the stream, and until at large expense a system of water-pipes has been laid from the stream to the city and through the streets, and, though having full knowledge of all the facts, makes no objection, gives no notice of any claim of injury, and begins no proceeding till after the pipes have been connected with the stream, and the waterworks have actually begun operation, he is not entitled to an interlocutory injunction which will stop the use of the water by the city. This is especially true where the evidence as to whether any damage would result to the property or not is conflicting. The point here determined was not raised or decided in the case of the Gity of Elberton v. Robbs, supra (which was begun some months earlier), or in Chestatee Pyrites Co. v. Cavenders Creck Co., 118 Ga. 255. See Griffin v. Augusta & Knoxville Railroad, 70 Ga. 164; Wood v. Macon & Brunswick Railroad, 68 Ga. 539 ; Darnell v. Southern Marble Co., 94 Ga. 231 (4); 2 Pom. Eq. Jur. (2d ed.) §817; 3 Id. § 1359; 1 Beach, Inj. §44; 1 High, Inj. (3d ed.) §7.

3. There being but .three stockholders of the plaintiff, who we;re also its officers, knowledge by them of the facts affected the company with knowledge. Ga. R. Co. v. Hamilton, 59 Ga. 174 (3); Mitchell v. Southwestern Railroad, 75 Ga. 398; s. c. 69 Ga. 114, 124; Guarantee Co. v. East Rome Town Co., 96 Ga. 511.

Judgment reversed.

All the Justices concur, except Gandler, J., absent.

City of Elberton v. Pearle Cotton Mills, 50 S.E. 977, 123 Ga. 1, 1905 Ga. LEXIS 356 (Ga. 1905).

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