Opinion
18246.
ARGUED JUNE 10, 1953.
DECIDED JULY 13, 1953.
Injunction. Before Judge Pharr. Fulton Superior Court. March 11, 1953.
Jno. M. Slaton, J. Hugh Rogers and Mitchell Mitchell, for plaintiffs in error.
James L. Flemister and Grant, Wiggins, Grizzard Smith, contra.
The judgment of the court below denying a new trial was not error for any reason assigned.
No. 18246. ARGUED JUNE 10, 1953 — DECIDED JULY 13, 1953.
Plaintiffs in the court below (who are plaintiffs in error here) brought suit against defendant seeking to enjoin the construction of a building to be used to operate an automobile sales and service business. It was alleged that defendant was the owner of lots 2, 3, 4, 5, and 6 in block J of the Colonial Hills subdivision in East Point, Georgia; that the Cobbs Land Company originally developed the subdivision and sold the lots subject to the restriction that they "shall not be used otherwise than for residential purposes"; and that defendant was constructing a building in violation of this restriction.
The evidence on the trial was undisputed that all of lot 6, all but a very small corner of lot 5, and a portion of lot 4 had never been owned by Cobbs Land Company or included in the Colonial Hills subdivision and had never been subject to any restrictions. It was admitted by all parties that lots 2 and 3 were entirely within the subdivision and were subject to the restrictions relating to the subdivision. The evidence further showed that the subject building was almost entirely on lots 5 and 6, but that approximately five feet of one corner was on that portion of lot 4 that was in the Colonial Hills subdivision, and that a part of a concrete driveway on the south side of the building was likewise in the Colonial Hills subdivision. Lots 2 and 3 remain vacant.
The evidence further showed that defendant, at some time during the negotiations for the purchase of the subject property, applied to the zoning commission of the City of East Point to rezone the property for business purposes, and that after a hearing at which some, if not all, of the plaintiffs were present, the property was so rezoned; that defendant received a deed to the property dated February 4, 1948; that defendant was advised by plaintiffs, or some of them, that the proposed building could not be constructed on the property because of the restrictions applying to lots in the Colonial Hills subdivision; that some time thereafter and before actual construction had begun, the parties conferred and it was agreed that defendant would begin construction and that plaintiffs would seek an injunction in order to determine the issue as to the restrictions before defendant had expended large sums of money in the construction of the building. Defendant did begin construction of the building in February, 1948, and put in a used-car lot with lights and a large sign. Plaintiffs took no action, and in March, 1948, actual construction was begun, and by June the foundation was complete, and in July the walls had been erected. Still plaintiffs made no attempt to halt construction.
On October 29, 1948, when the building was almost completed and defendant had incurred expenses in excess of $50,000, plaintiffs filed their petition to enjoin the construction of the building on the ground that its construction was a violation of the restrictions applying in the Colonial Hills subdivision. All this evidence is undisputed.
There was other evidence dealing with the plan or scheme of development in the Colonial Hills subdivision, the hearing on the rezoning application, and other matters which, in the view we take of this case, it is not necessary to set out here.
At the close of the evidence on both sides, the court below directed a verdict in favor of defendant, and judgment was entered thereon. Plaintiffs filed their motion for new trial which was denied. To this judgment plaintiffs excepted.
1. The evidence is undisputed that the plaintiffs knew as early as February, 1948, that the defendant planned to build an automobile salesroom and service department on the lots in question. At that time, no substantial construction had been made. The evidence further shows that, after the work was begun and progressed toward completion, the plaintiffs, although admitting they knew the building was being built and the use to which it was to be put, watched the day-by-day progress of the construction for almost eight months and until the building was almost complete and then filed their petition to enjoin this construction.
"Equity favors the vigilant, and does not extend its aid to the negligent or the sleepy. It will not stay the erection of a public building at the instance of parties who through remissness or indolence have slept over their rights until after another has expended large sums of money in the erection of the building." Holt v. Parsons, 118 Ga. 895, 897 ( 45 S.E. 690). See also Wood v. Macon Brunswick Railroad, 68 Ga. 539. The petitioners in the instant case slept on their rights for a period of almost eight months while another spent large sums of money and incurred indebtedness in the erection of a building. The defendant tried to get the issue settled before he had incurred any great expense, and agreed with the plaintiffs to begin construction so they could seek an injunction before the expense had been incurred. The plaintiffs did not bring their suit for injunction until after the defendant, thinking that by their non-action they had lost interest in the matter, proceeded with the construction of the building almost to completion. Equity must have regard to the respective diligence of the parties, and will not relieve one whose negligence and delay have placed it beyond the power of the court to extend him aid except at the expense of one who has been diligent. To do so would be unjust and inequitable.
2. The plaintiffs contend in their briefs that, even though they are not entitled to any relief in so far as the building itself is concerned, they are entitled to an injunction restraining the use of the driveway on the south side of the building, because the defendant paved it after this suit was brought and a temporary restraining order granted. We have carefully examined the record and can find no evidence as to when the driveway in question was paved. The only evidence as to the driveway is the testimony by the president of the defendant corporation, that "This driveway is a necessary appurtenance to the building. It is impossible to use the building for a garage without having a driveway out of it. We have been using that, and were using it, from March until October. We used the whole lot." This evidence is not contradicted in the record. If work was done on the driveway after a restraining order had been granted and suit filed to enjoin its construction, the plaintiffs had the burden of showing this by their evidence. They did not do so, and therefore the driveway must stand on the same footing as the building.
It follows, it was not error to direct a verdict in favor of the defendant in the court below.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.