Lankford v. Simms

Supreme Court of Georgia

Lankford v. Simms

53 S.E.2d 369, 205 Ga. 349, 1949 Ga. LEXIS 354

CourtSupreme Court of Georgia

DecidedMay 12, 1949

Docket16630.

StatusPublished

Cited by4 cases

This text of 53 S.E.2d 369 (Lankford v. Simms) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lankford v. Simms, 53 S.E.2d 369, 205 Ga. 349, 1949 Ga. LEXIS 354 (Ga. 1949).

Pincite

Opinion

Duckworth, Chief Justice.

1. “Where the main purpose of the injunction is not to require affirmative action, such as the opening of a hole in a wall, or the like, but to restrain diversion of the water from the natural channel in which it formerly flowed, and causing it to overflow and to collect on the property of another, the injunction is not a mandatory one.” Spencer v. Tumlin, 155 Ga. 341, 343 (116 S. E. 600). To the same effect see Sweetman v. Owens, 147 Ga. 436 (94 S. E. 542).

2. Applying the above stated principle of law to the allegations of the' petition as amended, that the petitioner and the defendant were adjoining owners of described lots of land, that the defendant had cut a ditch extending onto the petitioner’s land which caused the rainfall on the defendant’s land to accumulate in a central ditch and be deposited on the land of the petitioner, and that the defendant thereby created a continuing nuisance and caused irreparable damage, and in which petition an injunction was prayed for, the court erred in sustaining the general demurrer that no cause of action was set forth.

Judgment reversed.

All the Justices concur.

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Duckworth, Chief Justice.

1. “Where the main purpose of the injunction is not to require affirmative action, such as the opening of a hole in a wall, or the like, but to restrain diversion of the water from the natural channel in which it formerly flowed, and causing it to overflow and to collect on the property of another, the injunction is not a mandatory one.” Spencer v. Tumlin, 155 Ga. 341, 343 (116 S. E. 600). To the same effect see Sweetman v. Owens, 147 Ga. 436 (94 S. E. 542).

2. Applying the above stated principle of law to the allegations of the' petition as amended, that the petitioner and the defendant were adjoining owners of described lots of land, that the defendant had cut a ditch extending onto the petitioner’s land which caused the rainfall on the defendant’s land to accumulate in a central ditch and be deposited on the land of the petitioner, and that the defendant thereby created a continuing nuisance and caused irreparable damage, and in which petition an injunction was prayed for, the court erred in sustaining the general demurrer that no cause of action was set forth.

Judgment reversed.

All the Justices concur.

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Bluebook (online)

53 S.E.2d 369, 205 Ga. 349, 1949 Ga. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lankford-v-simms-ga-1949.

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