City of Atlanta v. Warnock

23 L.R.A. 301, 91 Ga. 210

• Court: Supreme Court of Georgia
• Decided: November 9, 1892
• Status: Published

Opinion

Bleckley, Chief Justice.

1. There was evidence indicating that the system of sewerage adopted by the city was a good and safe one, and that the nuisance complained of or its dangerous character did not result from any defect inherent in the system itself, but was due to defective execution in, failing to adapt the system properly to the steep grade of the street in- which this particular unwholesome .sewer was constructed and is maintained. There was ample evidence that poisonous gases in large' quantities were emitted through the manholes in this sewer, which were dangerous to health and life, and that the plaintiff, whose residence ivas on adjacent premises, was subjected to special injury and annoyance thereby. If such a nuisance owed its origin not to the general system of which this sewer was a part, but to a defective execution of the same at this particular place, there can be no doubt of the power to restrain the city from continuing the nuisance, notwithstanding' the municipal government is by statute invested with plenary powers over streets, sewers, drainage and sanitation. "Whether a nuisance attributable to a mistaken exercise of the legislative power of the city in adopting an unsafe or un ■ wholesome system of sewerage’ might be the subject-matter of injunction, is a question on which no decisive opinion need be expressed, — the strong probability being that the nuisance now under consideration had a different origin.

2. In granting the temporary injunction restraining the city “ from continuing said manholes in such condition as to allow the escape of noxious gases,” the presiding judge did not abuse his discretion; and the terms ■of the order were sufficiently definite and specific, construing them in the light of the pleadings and the evidence. The city officials, if they honestly and conscientiously endeavor to comply with the injunction, will have no real difficulty in ascertaining to a reasonable •certainty what manholes they are to deal with and what gases are to be kept from escaping through the same. Any affected ignorance on this subject is not to be anticipated. Judgment affirmed.