Mayor of Americus v. Mitchell

74 Ga. 377, 1885 Ga. LEXIS 312

• Court: Supreme Court of Georgia
• Decided: January 21, 1885
• Status: Published

Opinion

Hall, Justice.

[B. O. Mitchell filed a bill against the mayor and council of Americus, alleging that the defendants were proceeding to consider the question of abating a mill-pond owned by him, as a nuisance; that the pond was connected with a grist-mill; that he had expended large sums of money upon it; that it was not, in fact, a nuisance; that the mayor, etc., had no jurisdiction to abáte it, but they had declared their intention of so doing, and that, from the circumstances and information which he had received, he believed that, at once upon declaring it a nuisance, they would proceed to break the dam, and would not give him an opportunity to apply for and obtain a writ of certiorari. He prayed for an injunction to prevent their proceeding to declare the pond a nuisance and to abate it.

The defendants demurred to the bill and answered it, alleging that the proceedings were regular and on notice, and denying that a majority of them had declared their intention of breaking the pond, or that they would disregard a notice of certiorari.

On the hearing, the chancellor refused to enjoin the defendants from passing upon the question whether the mill-pond was a nuisance, but granted an injunction restraining them from abating it within five days after declaring it to be such (if they should so declare), in order to give the plaintiff time to apply for a writ of certiorari. Defendants excepted.]