Upon filing of a petition as provided in Code Section 41-2-2, any nuisance which tends to the immediate annoyance of the public in general, is manifestly injurious to the public health or safety, or tends greatly to corrupt the manners and morals of the public may be abated by order of a judge of the superior court of the county in which venue is proper.
(Laws 1833, Cobb's 1851 Digest, p. 817; Code 1863, § 3995; Code 1868, § 4023; Code 1873, § 4094; Code 1882, § 4094; Civil Code 1895, § 4760; Civil Code 1910, § 5329; Code 1933, § 72-201; Ga. L. 1980, p. 620, § 1; Ga. L. 1981, p. 867, § 1.)
Cross references.- Abatement of hazard resulting from abandoned well or hole, § 44-1-14.
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- Statutory definition of a nuisance is not vague and indefinite and therefore unconstitutional. Atlanta Processing Co. v. Brown, 227 Ga. 203, 179 S.E.2d 752 (1971).
Section defines an indictable nuisance, and was evidently intended not to authorize the abatement of an act which was not indictable, but to authorize the abatement of indictable nuisances of peculiar virulence, without waiting for an indictment. Vason v. South Carolina R.R., 42 Ga. 631 (1871).
Section applicable to public and private nuisance.
- While this section, in terms, provides only for the abatement of a public nuisance, in the manner therein specified, it has been several times held that a private nuisance may be abated under its operation provided the application is made by the party injured. Ruff v. Phillips, 50 Ga. 130 (1873); Salter v. Taylor, 55 Ga. 310 (1875); Hart v. Taylor, 61 Ga. 156 (1878); Holmes v. Jones, 80 Ga. 659, 7 S.E. 168 (1888); Savannah, F. & W. Ry. v. Gill, 118 Ga. 737, 45 S.E. 623 (1903).
Equitable relief.
- If the nuisance is continuing in character, the remedy is inadequate, and equity will take jurisdiction and grant relief. Hunnicutt v. Eaton, 184 Ga. 485, 191 S.E. 919 (1937).
Nuisance may be abated in equity if the hurt or damage is irreparable or continuing. Isley v. Little, 217 Ga. 586, 124 S.E.2d 80 (1962), later appeal, 219 Ga. 23, 131 S.E.2d 623 (1963).
Operation of lawful business as a nuisance.
- While mere apprehension of injury and damage is insufficient, if it is made to appear with reasonable certainty that irreparable harm and damage will occur from the operation of an otherwise lawful business amounting to a continuing nuisance, equity will restrain the construction, maintenance, or operation of such lawful business. Isley v. Little, 217 Ga. 586, 124 S.E.2d 80 (1962), later appeal, 219 Ga. 23, 131 S.E.2d 623 (1963).
Cited in South Carolina R.R. v. Ells, 40 Ga. 87 (1869); Wetter v. Campbell, 60 Ga. 266 (1878); Roberts v. Harrison, 101 Ga. 773, 28 S.E. 995, 65 Am. St. R. 342 (1897); Western & A.R.R. v. City of Atlanta, 113 Ga. 537, 38 S.E. 996, 54 L.R.A. 294 (1901); Cole v. Jones, 8 Ga. App. 737, 70 S.E. 96 (1911); Adair v. Spellman Sem., 13 Ga. App. 600, 79 S.E. 589 (1913); Giles v. Rawlings, 148 Ga. 575, 97 S.E. 521 (1918); Jones v. City of Atlanta, 40 Ga. App. 300, 149 S.E. 305 (1929); De Long v. Kent, 85 Ga. App. 360, 69 S.E.2d 649 (1952); Hagins v. Howell, 219 Ga. 276, 133 S.E.2d 8 (1963); Sizemore v. Coker, 220 Ga. 773, 141 S.E.2d 891 (1965).
Sufficiency of Allegations
No presumption of damages.
- While petitioners were not entitled to all the relief prayed for, or to an injunction against the operation of the defendant's service station business when conducted in a normal manner accompanied by no more noises than were reasonably necessary, yet the petitioners would be entitled to injunctive relief against unusual and unnecessary noises, provided the proof showed that the operation of the business was attended with such unusual and unnecessary noises, as distinguished from those disturbances and noises which were normal and of the character usually attendant upon the operation of the business of operating a filling station and garage for repairs. Wilson v. Evans Hotel Co., 188 Ga. 498, 4 S.E.2d 155 (1939).
Nuisance being an indirect tort, there is no presumption of damages from its maintenance; and the plaintiff, in order to recover must show the fact of the nuisance and consequent damages. Crane v. Mays, 70 Ga. App. 66, 27 S.E.2d 347 (1943).
Petition alleging that the plaintiff purchased a described tract of land, and at the same time acquired an easement adjacent thereto over a lane as a means of ingress and egress from the public road to the plaintiff's farm, that the plaintiff had used this land without interruption since the date the land was acquired until the defendant obstructed the land by placing a "cattle gap" across the land, that such obstruction had interfered with the plaintiff's movement of cattle along that lane to a pasture, thereby causing the plaintiff much inconvenience, trouble, and injury to the plaintiff's cattle, and thereby depriving the plaintiff's family of necessary milk and food, stated a cause of action for injunctive relief. Ozbolt v. Miller, 206 Ga. 558, 57 S.E.2d 601 (1950).
Character of proceeding under this chapter was established by the plaintiff's petition and the petition's contents, and this could not be changed into an action to try title to land by the defense sought to be interposed by the defendant. Barnes v. Cheek, 84 Ga. App. 653, 67 S.E.2d 145 (1951).
RESEARCH REFERENCES
Am. Jur. 2d.
- 58 Am. Jur. 2d, Nuisances, § 50 et seq.
C.J.S.- 66 C.J.S., Nuisances, §§ 107-115, 182-187.
ALR.
- Proximate cause as determining landlord's liability, where injury results to a third person from a nuisance that becomes such only upon tenant's using the premises, 4 A.L.R. 740.
Fire escape as an attractive nuisance, 9 A.L.R. 271.
Necessity of knowledge by owner of real estate of a nuisance maintained thereon by another to subject him to the operation of a statute providing for the abatement of nuisances, or prescribing pecuniary penalty therefor, 12 A.L.R. 431; 121 A.L.R. 642.
Liability of purchaser of premises for nuisance thereon created by predecessor, 14 A.L.R. 1094.
Tannery or curing of hides as a nuisance, or subject of municipal regulation, 32 A.L.R. 1358.
Injunction against games on neighboring property, 62 A.L.R. 782; 32 A.L.R.3d 1127.
Decree abating nuisance as affecting owner not served with process, 63 A.L.R. 698.
Dogs as nuisance, 79 A.L.R. 1060.
Aeroplanes and aeronautics, 99 A.L.R. 173.
Use of property for production of war goods as affecting question of nuisance, and injunction to abate same, 145 A.L.R. 611.
Validity of provision of statute or ordinance that requires vacation of premises which do not comply with building or sanitary regulations, upon notice to that effect, without judicial proceeding, 153 A.L.R. 849.
When statute of limitation commences to run against damage from overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302.
Stockyard as a nuisance, 18 A.L.R.2d 1033.
Practice of exacting usury as a nuisance or ground for injunction, 83 A.L.R.2d 848.
Statutes, ordinances, or regulations relating to private residential swimming pools, 92 A.L.R.2d 1283.
Saloons or taverns as nuisance, 5 A.L.R.3d 989.
Buyer's acceptance of delayed or defective instalment of goods as waiver of similar default as to later installments, 32 A.L.R.3d 1127.
Modern status of rules as to balance of convenience or social utility as affecting relief from nuisance, 40 A.L.R.3d 601.
Validity and construction of statute or ordinance providing for repair or destruction of residential building by public authorities at owner's expense, 43 A.L.R.3d 916.
Gasoline or other fuel storage tanks as nuisance, 50 A.L.R.3d 209.
Exhibition of obscene motion pictures as nuisance, 50 A.L.R.3d 969.
Nuisance: right of one compelled to discontinue business or activity constituting nuisance to indemnity from successful plaintiff, 53 A.L.R.3d 873.
Existence of, and relief from, nuisance created by operation of air conditioning or ventilating equipment, 79 A.L.R.3d 320.
Bells, carillons, and the like, as nuisance, 95 A.L.R.3d 1268.
Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.
Nuisance as entitling owner or occupant of real estate to recover damages for personal inconvenience, discomfort, annoyance, anguish, or sickness, distinct from, or in addition to, damages for depreciation in value of property or its use, 25 A.L.R.5th 568.