Phinizy v. Gardner

125 S.E. 195, 159 Ga. 136, 1924 Ga. LEXIS 396

• Court: Supreme Court of Georgia
• Decided: October 17, 1924
• Docket: No. 4158
• Status: Published

Opinions

Per Curiam.

1. One wlio is the owner of the easement of burial in a cemetery is entitled to recover damages from any one who wrongfully interferes with such right. Jacobus v. Congregation of the Children of Israel, 107 Ga. 518 (33 S. E. 853, 73 Am. St. R. 141); Stewart v. Garrett, 119 Ga. 386 (46 S. E. 427, 64 L. R. A. 99, 100 Am. St. R. 179). If such trespass is a continuing one, a court of equity will enjoin it. Stovall v. Caverly, 139 Ga. 243 (77 S. E. 29). If we concede that the plaintiff had an adequate remedy at law for the removal of the fences erected by the defendant across the private way to the cemetery, such remedy would not give adequate relief to the .plaintiff for the continued plowing and cultivation of the roadway. Such relief could only be obtained in equity.

2.'Where the main purpose of the injunction is not to require affirmative action, but to restrain the defendant from repeating a trespass, the injunction is not a mandatory one, although compliance' with it may require some affirmative action on the part of the party enjoined, such as the removal of a fence across the roadway to a cemetery. Spencer v. Tumlin, 155 Ga. 341 (116 S. E. 600).

No. 4158. October 17, 1924.

Judgment affirmed.

All the Justices concur, except Hill, J., dissenting. Hamilton Phinizy, for plaintiff in error. William II. Fleming, contra.