Nelms v. Clark & Morgan

44 Ga. 617

• Court: Supreme Court of Georgia
• Decided: January 15, 1872
• Status: Published

Opinion

McCay, Judge.

We do not care to go into the question of the real rights of the plaintiff in this case, as they may appear on a trial of the issue. The question now is only on the injunction until the hearing. It seems to us that there is nothing in the case to require the harsh remedy of an injunction.

This mill was built in 1866, and has been in use continuously since. It is.rather a bold statement to say that a great pressing emergency exists, requiring the immediate application of an injunction, when the evil complained of has been going on for four or five years.

Besides, the injunction asked for is one of very questionable right. To prevent the ebb and flow of this water as complained of, is to stop the mill altogether. Perhaps to tear down the dam. We think Judge Clark was right in refusing such an injunction, until a jury has passed upon the very conflicting testimony that exists as appears by the affidavits. Whether the sickness is caused at all by the ebb and flow, seems to be a matter of opinion, in which the witnesses differ; and it is a well settled practice, that in a case of this kind the Judge ought to wait for the verdict before he applies so harsh a remedy as an injunction.

There are other important questions in this case, but as we, at present, only intend to pass upon the propriety of granting a temporary injunction, we will not discuss them, since, for the reasons given, we think there ought not to be an injunction until the questions made have been tried by a jury.

Judgment affirmed.