Rushing v. Thigpen

37 S.E.2d 180, 200 Ga. 313, 1946 Ga. LEXIS 385

• Court: Supreme Court of Georgia
• Decided: February 19, 1946
• Docket: 15375.
• Status: Published

Opinion

Jenkins, Presiding Justice.

1. A nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Simpson v. DuPont Powder Co., 143 Ga. 465, 466 (85 S. E. 344, L. R. A. 1915E, 430); Wilson v. Evans Hotel Co., 188 Ga. 498, 500 (4 S. E. 2d, 155, 124 A. L. R. 373).

2. This court has several times held that garages- and filling- stations in a residence neighborhood do not constitute a nuisance per se. Standard Oil Co. v. Kahn, 165 Ga. 575 (141 S. E. 643); City of Hawkinsville v. Williams, 185 Ga. 396, 399 (195 S. E. 162); Morrow v. Atlanta, 162 Ga. 228 (2) (133 S. E. 345); and see citations in Wilson v. Evans Hotel Co., supra.

(a.) The writer of this syllabus entertained views contrary to those just expressed, as evidenced by his dissent in the Wilson case (188 Ga. 510), and in Grubbs v. Wooten, 189 Ga. 390, 401 (5 S. E. 2d, 874), but yields as he did in the Wilson case to the repeated adjudications of this court to the contrary, with respect to the preceding holding.

3. If, after the building is completed, the business should be operated in an unlawful and unreasonable manner, resulting in excessive, unreasonable, and unnecessary injury to a contiguous owner, such owner would not be without his remedy under the ruling in the Wilson case, above cited.

4. In accordance with the foregoing principles, the court did not err in dismissing the petition praying for an injunction against the construction of a filling station and garage in a residence neighborhood.

Judgment affirmed.

All the Justices concur, except Wyatt, J., who dissents. J. P. Dukes, for plaintiff. P. M. Anderson, for defendant.