Where the consequence of a nuisance about to be erected or commenced will be irreparable damage and such consequence is not merely possible but to a reasonable degree certain, an injunction may be issued to restrain the nuisance before it is completed.
(Orig. Code 1863, § 2944; Code 1868, § 2951; Code 1873, § 3002; Code 1882, § 3002; Civil Code 1895, § 3863; Civil Code 1910, § 4459; Code 1933, § 72-204; Ga. L. 1980, p. 620, § 4.)
Law reviews.- For note discussing the abatement of nonconforming uses as nuisances, see 10 Ga. St. B.J. 302 (1973).
JUDICIAL DECISIONSANALYSIS
General Consideration
Injunction will lie in name of state.
- By clear and necessary implication, an injunction will lie in the name of the state to enjoin a public nuisance. Albany Theater, Inc. v. Short, 171 Ga. 57, 154 S.E. 895 (1930).
Generally, a public nuisance gives to any individual no right of action for injunction, but the nuisance must be abated by a process instituted in the name of the state. Albany Theater, Inc. v. Short, 171 Ga. 57, 154 S.E. 895 (1930).
Cited in Mygatt v. Goetchins, 20 Ga. 350 (1856); Sullivan, Cabot & Co. v. Rome R.R., 28 Ga. 29 (1859); Kirtland v. Mayor of Macon, 66 Ga. 385 (1881); Wingate v. City of Doerun, 177 Ga. 373, 170 S.E. 226 (1933); Vaughn v. Burnette, 211 Ga. 206, 84 S.E.2d 568 (1954); Payne v. Terrell, 269 Ga. App. 540, 604 S.E.2d 551 (2004); Hitch v. Vasarhelyi, 285 Ga. 627, 680 S.E.2d 411 (2009).
Basis of Injunction
Nuisance must be certain.
- It is only when it is made to appear with reasonable certainty that an instrumentality in the course of construction will necessarily constitute a nuisance that a court of equity will exercise the power to restrain. Elder v. City of Winder, 201 Ga. 511, 40 S.E.2d 659 (1946).
Court of equity will only exercise the power to restrain the erection of a building, and the maintenance therein, after construction, of a lawful business, on the ground that the operation of such business will constitute a nuisance, when it is made to appear with reasonable certainty that such operation necessarily constitutes a nuisance, the consequences of which will be irreparable in damages. Powell v. Garmany, 208 Ga. 550, 67 S.E.2d 781 (1951).
If the injury is either irreparable or continuing, an injunction will be granted. Farley v. Gate City Gas Light Co., 105 Ga. 323, 31 S.E. 193 (1898).
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).
Nuisance per accidens by reason of circumstances and surroundings may be abated in equity if the hurt or damage is irreparable or continuing. Camp v. Warrington, 227 Ga. 674, 182 S.E.2d 419 (1971).
Injunction will be granted when the damages can be ascertained, and all rights finally adjudicated in one action. Wheeler v. Steele, 50 Ga. 24 (1873); Powell v. Foster, 59 Ga. 790 (1877).
Continuing nuisance gives a new cause of action for each day of its continued maintenance, and in such a case, in order to avoid a multiplicity of suits, a court of equity will entertain jurisdiction to enjoin the nuisance and also have the nuisance abated. Albany Theater, Inc. v. Short, 171 Ga. 57, 154 S.E. 895 (1930).
Evidence obtained by illegal search or seizure.
- When the evidence in support of injunctions to abate a public nuisance is obtained by illegal searches and seizures, the portions of the judgments granting such injunctions are void. Carson v. State ex rel. Price, 221 Ga. 299, 144 S.E.2d 384 (1965).
Exclusion of opinion evidence of nonexperts.
- Method of taking testimony, when an injunction had been applied for, was found in former Part 2, Art. 2, Ch. 10, T. 24; however, opinion evidence of nonexperts would be excluded. Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472, 67 S.E. 1126 (1910).
Mere apprehension of injury and damage.
- Allegation of "mere speculative or contingent injuries, with nothing to show that they will in fact happen," will not support a prayer to enjoin a nuisance. Harrison v. Brooks, 20 Ga. 537 (1856); Bailey v. Ross, 68 Ga. 735 (1882); Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472, 67 S.E. 1126 (1910); Elder v. City of Winder, 201 Ga. 511, 40 S.E.2d 659 (1946).
Mere apprehension of irreparable injury from an alleged nuisance, consisting of a house in course of construction for a lawful business use, is not sufficient to authorize an injunction. If it be a nuisance, the consequences must be to a reasonable degree certain. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).
Mere apprehension of irreparable injury from an alleged nuisance consisting of a house in the course of construction or alteration for a lawful business is not sufficient to authorize an injunction. Roberts v. Rich, 200 Ga. 497, 37 S.E.2d 401 (1946).
Allegations of mere speculative or contingent injuries, with nothing to show that in fact the injuries will happen, are insufficient to support a prayer for injunctive relief. Powell v. Garmany, 208 Ga. 550, 67 S.E.2d 781 (1951).
Mere apprehension of injury, based on the assumption that a lawful business not then in operation will be operated in the future in an improper manner, so as to become a nuisance, is not sufficient to authorize equity to enjoin the erection of a building wherein such business is to be carried on. Powell v. Garmany, 208 Ga. 550, 67 S.E.2d 781 (1951).
Mere anticipation of injury from the operation of a lawful business will not authorize the grant of an injunction. Davis v. Miller, 212 Ga. 836, 96 S.E.2d 498 (1957).
When a petition fails to show the facts from which it appears with reasonable certainty that the operation of the business will work hurt, inconvenience, and damage, it falls just short of alleging a nuisance per accidens against which an injunction should be granted. Griffith v. Newman, 217 Ga. 533, 123 S.E.2d 723 (1962).
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); Camp v. Warrington, 227 Ga. 674, 182 S.E.2d 419 (1971).
Fears of abutting landowners that land condemned for use as a football stadium would become a nuisance were too speculative to permit the enjoining of the condemnation. Herren v. Board of Educ., 219 Ga. 431, 134 S.E.2d 6 (1963).
Trial court properly declined to permanently enjoin the defendants from using their property as a public motocross track. The defendants closed the track to the public before the plaintiffs filed suit, and the plaintiffs did not establish to a reasonably certain degree under O.C.G.A. § 41-2-4 that the defendants would reopen it to the public; thus, the trial court was not required to issue an injunction merely because the plaintiffs apprehended a public use at some future time. Evans v. Knott, 282 Ga. 584, 652 S.E.2d 535 (2007).
Granting and dissolution of injunctions.
- Interlocutory injunction may be granted against the establishment of business until the final trial of the case before the jury. Morrison v. Slappey, 153 Ga. 724, 113 S.E. 82 (1922).
Use of restraining order.
- While an injunction which is purely mandatory in the injunction's nature cannot be granted, the court may grant an order the essential nature of which is to restrain, although in yielding obedience to the restrain the defendant may incidentally be compelled to perform some act. Central of Ga. Ry. v. Americus Constr. Co., 133 Ga. 392, 65 S.E. 855 (1909).
Injunction granted enjoining escape of gases from a city sewer.
- See Central of Ga. Ry. v. Americus Constr. Co., 133 Ga. 392, 65 S.E. 855 (1909).
Unlicensed obstruction of public street.
- See Savannah, A. & G.R.R. v. Shields, 33 Ga. 601 (1863).
Dumping trash on another's land.
- See Lowe v. Holbrook, 71 Ga. 563 (1883); Butler v. Mayor of Thomasville, 74 Ga. 570 (1885).
Obstruction of an alley.
- See Murphey v. Harker, 115 Ga. 77, 41 S.E. 585 (1902).
Diversion of a watercourse.
- See Persons v. Hill, 33 Ga. 141 (1864).
Municipal license of cars in its street for private use.
- See Mayor of Macon v. Harris, 73 Ga. 428 (1884).
Construction of a pond.
- See De Vaughn v. Minor, 77 Ga. 809, 1 S.E. 433 (1887).
Maintaining livery stable.
- See Coker v. Birge, 10 Ga. 336 (1851). But see Rounsaville v. Kohlheim, 68 Ga. 668, 45 Am. R. 505 (1882).
Operation of poultry houses.
- See May v. Brueshaber, 265 Ga. 889, 466 S.E.2d 196 (1995).
Grocery business in residential area.
- It was not error for a trial court to dismiss a petition complaining that a proposed warehouse and wholesale grocery business in a residential section would constitute a nuisance, causing irreparable damage to the plaintiffs, and seeking an injunction to restrain the construction of the proposed building, because such a business is not necessarily a nuisance per se, even in a residential neighborhood, and mere apprehension of irreparable injury is insufficient. Roberts v. Rich, 200 Ga. 497, 37 S.E.2d 401 (1946).
Effect of abatement of nuisance before trial.
- If subsequently to the institution of the action, but prior to the trial, the defendant has practically abated the nuisance, a refusal to grant an injunction is proper. Farley v. Gate City Gas Light Co., 105 Ga. 323, 31 S.E. 193 (1898).
Jurisdiction
Court of equity has jurisdiction and in a proper case will, by injunction, restrain a public nuisance. Albany Theater, Inc. v. Short, 171 Ga. 57, 154 S.E. 895 (1930).
Prospective or future damages not recoverable.
- Equity courts have the power to abate nuisances, but, if the nuisance complained of is merely temporary, then prospective or future damages, as damages for permanent injury, are not recoverable. Ward v. Southern Brighton Mills, 45 Ga. App. 262, 164 S.E. 214 (1932).
Application of equity to nuisance and not criminal law.
- Equity, generally, will not interfere with the administration of the criminal law. The state, however, has an interest in the welfare, peace, and good order of the state's citizens and communities and has provided in the state's laws for the abatement of nuisances when the public generally is injured. Albany Theater, Inc. v. Short, 171 Ga. 57, 154 S.E. 895 (1930).
Order of Abatement
Sufficiency of order.
- Order restraining the defendant from permitting any gases or vapors to escape from, or be carried beyond, the ground owned by the defendant company and upon which the company's plant was located, so as to constitute a nuisance, as defined in former Civil Code 1910, §§ 4457 and 4459 (see now O.C.G.A. §§ 41-1-1 and41-2-4) was sufficiently specific. Morris Fertilizer Co. v. Boykin, 149 Ga. 673, 101 S.E. 799 (1920).
RESEARCH REFERENCES
Am. Jur. 2d.
- 42 Am. Jur. 2d, Injunctions, §§ 51, 53, 248. 58 Am. Jur. 2d, Nuisances, §§ 285-292.
C.J.S.- 43 C.J.S., Injunctions, §§ 16, 17, 20 et seq. 66 C.J.S., Nuisances, §§ 209-219.
ALR.
- Injunction to prevent establishment or maintenance of garbage or sewage disposal plant, 5 A.L.R. 920; 47 A.L.R. 1154.
Nuisance resulting from smoke alone as subject for injunctive relief, 6 A.L.R. 1575.
Right to enjoin threatened or anticipated nuisance, 26 A.L.R. 937; 32 A.L.R. 724; 55 A.L.R. 880.
Institution for the punishment or rehabilitation of criminals, delinquents, or alcoholics as enjoinable nuisance, 21 A.L.R.3d 1058.
Punitive damages in actions based on nuisance, 31 A.L.R.3d 1346.
Operation of cement plant as nuisance, 82 A.L.R.3d 1004.