Faulkner v. Georgia Power Co.
Faulkner v. Georgia Power Co.
070rehearing
Appellants’ prayers for declaratory relief and permanent injunction have not been passed upon by the trial court and hence are not moot.
Motion for rehearing denied.
Opinion of the Court
Appellants in this case, residents of Redding Road in DeKalb County, sued Georgia Power Company in an attempt to enjoin the construction and electrification of a high voltage transmission line within the right-of-way of Redding Road.
The matter came before the superior court on January 13, 1978, on the residents’ prayer for temporary injunction and on Georgia Power Company’s motion to dissolve the temporary restraining order and to deny preliminary injunctive relief. On January 17, 1978, the trial court granted the power company’s motions and denied the residents’ prayer for temporary injunction. The residents timely appealed to this court but did not seek an injunction pending appeal. Georgia Power Company proceeded to complete construction of the line. The power company has moved to dismiss this appeal as moot and the residents have conceded that the activity sought to be enjoined has been completed.
In 1856, this court held that a court of equity will not, by injunction granted upon interlocutory application, direct the defendant to perform an act. Thomas v. Hawkins, 20 Ga. 126, 134 (2) (1856). This holding was codified in 1863 (see Goodrich v. Ga. R. & Bkg. Co., 115 Ga. 340, 343-344 (41 SE 659) (1902)) as § 3145 of the Code of that year: "An injunction can only restrain, it cannot compel a party to perform an act. It may restrain until performance.” The Code did not retain the limitation as to
As one consequence of this codification, a distinction developed, often difficult to discern, between prohibited mandatory injunctions and the permissible requirement of the incidental performance of an affirmative act. See Goodrich v. Ga. R. & Bkg. Co., supra; Ellis v. Campbell, 211 Ga. 699 (1) (88 SE2d 389) (1955).
A second consequence of this codification was the development of a line of cases dismissing appeals on the ground of mootness where a temporary injunction was denied by the trial court, no supersedeas was obtained by the plaintiff and the act or work sought to be enjoined was completed pending appeal. Waldron v. City of Atlanta, 167 Ga. 620 (146 SE 318) (1928); Clements v. Wilkerson, 151 Ga. 467 (107 SE 47) (1921); Gardner v. Jones, 161 Ga. 286 (130 SE 680) (1925); Ga. Power Co. v. City of Rome, 172 Ga. 14, 31 (157 SE 283) (1931); Blackwell v. Farrar, 209 Ga. 420 (73 SE2d 203) (1952). These appeals were moot because at that time mandatory injunctions were not available to require completed acts or projects to be undone. Ga. Pacific R. v. Mayor &c. of Douglasville, 75 Ga. 828 (1) (1885); Blackwell v. Farrar, supra. See also Shurley v. Black, 156 Ga. 683 (2) (119 SE 618) (1923); Simmons v. Lindsay, 144 Ga. 845, 848 (88 SE 199) (1916); Hapeville-Block, Inc. v. Walker, 204 Ga. 462, 464 (50 SE2d 9) (1948).
In connection with the enactment of the Civil Practice Act, the present day prohibition on mandatory injunctions, Code § 55-110 (1933), was repealed (Ga. L. 1967, pp. 226, 244). We are called upon to decide whether that repeal permits the maintenance of this appeal as against a defense of mootness.
We recognize that since the repeal of Code Ann. § 55-110, mandatory permanent injunctions may issue. DeKalb County v. McFarland, 231 Ga. 649 (4) (203 SE2d 495) (1974). Thus it is no longer beyond the power of a superior court in a permanent
Having recognized that the bar of mootness is no longer as absolute as it once was, we deem it advisable to proceed case by case.
Appeal dismissed.
Plaintiffs also complain that the high voltage transmission line is an additional servitude and is thus a taking of their property insofar as they own the
Thus the nature of the injunction sought has changed. The plaintiffs sought at the outset a prohibitory injunction. Since it was denied and the work has been completed, the plaintiffs now need a mandatory injunction if they are to restore the status quo to the time of the denial.
We do not here decide under what conditions, if any, mandatory temporary injunctions, or restraining orders, may issue.
The effect of the repeal of Code Ann. § 55-110 was not recognized in Cotton v. First Nat. Bank, 235 Ga. 511 (220 SE2d 132) (1975).
Reference
- Full Case Name
- FAULKNER Et Al. v. GEORGIA POWER COMPANY
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- 13 cases
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- Published