Hart v. Lewis, Shore & Co.

55 S.E. 189, 126 Ga. 439, 1906 Ga. LEXIS 401

• Court: Supreme Court of Georgia
• Decided: August 9, 1906
• Status: Published

Opinion

Cobb, P. J.

(After stating the foregoing facts.) The application was not under the timber cutters act (Civil Code, §4927); nor did the evidence authorize an injunction upon the ground that ■the defendants were insolvent. The evidence did authorize a finding that the plaintiff was the owner of the land and timber by prescription. It also appeared that both plaintiff and defendants claimed under a common grantor. Brundage v. Bivens, 105 Ga. 805. The allegations of the petition and the evidence were sufficient to show that the injury would be irreparable. Damages would not adequately compensate the plaintiff for the threatened wrong. Massee-Felton Lumber Co. v. Sirmans, 122 Ga. 297; Gray Lumber Co. v. Gaskin, 122 Ga. 342; Camp v. Dixon, 112 Ga. 872, and cit.; Huxford v. Southern Pine Co., 124 Ga. 181. The ;judge must have reached the conclusion that the plaintiff was entitled to an injunction. Upon no other theory would the requirement of a bond by the defendant be authorized. When this conclusion was reached it necessarily involved a finding that damages would not compensate for the threatened wrong. It was therefore ■erroneous to allow the defendants to continue the trespass upon .giving a bond, thus remitting the plaintiff to a remedy which was not adequate. The evidence authorized a finding for either party; but when there was a finding on the facts in favor of the plaintiff, the injunction should have been granted unconditionally. Stoner v. Patten, 124 Ga. 754; Wethington v. Baxter, 124 Ga. 1024.

Judgment reversed.

All the Justices concurexcept Fish, G. J., '.absent.