Appellees filed a nuisance action in August 2003 seeking to enjoin appellants’ use of a portion of their property as a motocross track. The trial court chose to impanel a jury as an aid in finding facts, see Guhl v. Davis , 242 Ga. 356, 358 249 SE2d 43 1978, and the parties agreed to the submission of a special verdict form. See OCGA § 9-11-49 b. Evidence was presented that supported the jury’s findings in the June 2005 special verdict that appellants’ operation of a public motocross track on their property between August 2002 and May 2003 was a nuisance and that appellant’s operation of motorcycles on their property since June 2003 was not a nuisance.1 As further provided by the special verdict form, the jury awarded appellees no damages for appellants’ operation of a nuisance and declined to “request that the court structure guidelines as to the future operation” of appellants’ track. The trial court subsequently entered an order that expressly referenced the jury’s verdict but nevertheless permanently enjoined appellants’ use of the track except for specified days and times,2 with limitations on the number and type of motorcycles allowed on the track,3 and provided that the restrictions would “apply to the property and shall run with the land.” For the reasons that follow, we reverse the trial court’s order. 1. This Court held in Guhl , supra, 242 Ga. at 358, that in equity cases although there is no right to jury trial, the court may call for special verdicts if, in its discretion, it desires to seek a jury’s aid as a fact finding body to resolve specific factual disputes. The court then will have the facts as determined by the jury’s special verdict in deciding the ultimate . . . issue. Accord Turner Advertising Co. v. Garcia , 251 Ga. 46 4 302 SE2d 547 1983. The trial court here “exercised its inherent right to seek a jury’s aid as a fact-finding body. Cit. However, because of the advisory nature of the jury in this case, the trial court was not bound by the factual finding of the jury on the issue of nuisance.” Bagley v. Robertson , 265 Ga. 144, 145 454 SE2d 478 1995. See Connell v. Long , 248 Ga. 716 1 286 SE2d 287 1982 declining to reach the issue whether a special verdict in equity is binding on the court.
In Bagley , supra, although the trial court originally adopted the jury’s factual findings and entered judgment in accordance with those findings, we upheld the subsequently granted judgment n.o.v., which the trial court entered after observing the advisory nature of the jury’s verdict and the lack of evidence to support the jury’s finding. In Montana v. Blount , 232 Ga. App. 782 1 b 504 SE2d 447 1998, after empaneling an advisory jury to hear the evidence, the trial court exercised its prerogative to assess the facts independently and arrive at its own conclusions regarding the entitlement to equitable relief. “It was not error for the trial court either to determine that there existed nothing for which the jury could render an advisory verdict, or to decide to try the case without the jury and find that Montana was not entitled to equitable relief.” Id. at 786 1 b.
