Douglas v. Wages

523 S.E.2d 330, 271 Ga. 616, 99 Fulton County D. Rep. 3942, 1999 Ga. LEXIS 915

• Court: Supreme Court of Georgia
• Decided: November 1, 1999
• Docket: S99A1171
• Status: Published

Opinions

Benham, Chief Justice.

Appellants Ann and Michael Douglas own real property in the Satinwood subdivision in Guyton, Georgia. Appellees Douglas Wages, Elze Kennedy, and Samuel Bennett also own real property in the subdivision. In fact, the parties are the only families living in the subdivision, and all live on the same cul-de-sac. Each of the lots owned by appellants and Bennett is 1.69 acres, Kennedy’s lot is 3 acres, and Wages’ property is approximately 28 acres. In December 1997, appellants filed suit against their neighbors, seeking monetary damages for nuisance, breach of the subdivision’s restrictive covenants, breach of the covenant of quiet enjoyment, and intentional infliction of emotional distress. In their complaint, appellants alleged that appellees operated motorized all-terrain vehicles, played loud music, and fired loaded weapons¹ on property located within the subdivision. Appellants sought a temporary and permanent injunction against appellees and, after a two-day hearing, the trial court denied appellants’ request for temporary injunctive relief. They now appeal that ruling.²

Appellants’ sole contention is that appellees’ actions violated the subdivision’s restrictive covenants as a matter of law, making the trial court’s denial of appellants’ request for temporary injunctive relief erroneous. The covenants at issue state that “[n]o lot shall be used except for residential purposes,” and that “[n]o noxious or offensive activity shall be erected, maintained or conducted upon any lot or any party thereof, nor shall anything be done thereon which may be or may become an annoyance or nuisance in the neighborhood.”

1. “The general rule is that the owner of land has the right to use it for any lawful purpose. Restrictions upon an owner’s use of land must be clearly established and must be strictly construed. [Cit.] Moreover, any doubt concerning restrictions on use of land will be construed in favor of the grantee. [Cit.]” Holbrook v. Davison, 258 Ga. 844 (1) (375 SE2d 840) (1989). The first restriction clearly limits the use to which the property may be put to “residential purposes.” Elder v. Watts, 252 Ga. 212 (312 SE2d 331) (1984). See also Shoafv. Bland, 208 Ga. 709 (2) (69 SE2d 258) (1952). Accordingly, activities of a commercial nature would not be permitted. See Taylor v. Smith, 221 Ga. 55 (3) (142 SE2d 918) (1965); Voyles v. Knight, 220 Ga. 305 (2) (138 SE2d 565) (1964). Non-commercial recreational activities, however, are within the purpose of a residence and are permitted under the restrictive covenant. Elder v. Watts, supra.

2. The second restrictive covenant prohibits “noxious or offensive activity” or anything “which may be or may become an annoyance or nuisance. . . .” Such a provision “is too vague, indefinite and uncertain for enforcement in a court of equity by injunction, except in so far as these words may be included within the definition of a nuisance. . . .” Seckinger v. City of Atlanta, 213 Ga. 566 (2) (100 SE2d 192) (1957). OCGA § 41-1-1 defines “nuisance” as anything, lawful or unlawful, “that causes hurt, inconvenience, or damage to another,” applying a reasonable person standard. Since the evidence did not demand a finding that the activities complained of constituted a statutorily-defined nuisance, the exercise of the trial court’s discretion in refusing a temporary injunction will not be disturbed on appeal. Dickson v. Warren Co., 183 Ga. 746 (189 SE 839) (1937).

Judgment affirmed.

All the Justices concur, except Hunstein and Carley, JJ., who concur specially.

1 At the hearing held on the request for injunctive relief, it was established that appellees had engaged in skeet shooting and target shooting.

2 This appeal was docketed in the Court of Appeals which, eight months after docketing, transferred the case to this Court on the ground that it invoked our appellate jurisdiction over equity cases. Appellants’ sole enumeration of error, that the subdivision’s restrictive covenants were violated as a matter of law, is a legal issue. The grant or denial of equitable relief that follows from the resolution of that legal issue is ancillary, making this an appeal over which this Court does not have initial appellate jurisdiction. Pittman v. Harbin Clinic Prof. Assn., 263 Ga. 66 (428 SE2d 328) (1993). Besser v. Rule, 270 Ga. 473 (510 SE2d 530) (1999) should not be cited as authority supporting a finding of appellate jurisdiction of a particular type of case in this Court since this Court did not rule on the issue of its appellate jurisdiction in Besser. Allen v. State, 219 Ga. 777 (135 SE2d 885) (1964). Despite our lack of initial appellate jurisdiction, we have addressed the merits of appellants’ appeal in the interest of judicial economy.