Town of Rentz v. Roach

115 S.E. 94, 154 Ga. 491, 1922 Ga. LEXIS 402

• Court: Supreme Court of Georgia
• Decided: November 18, 1922
• Docket: No. 3033
• Status: Published

Opinion

Hill, J.

1. The petition set out a cause of action; and the court did not err in overruling the demurrer, and in refusing to dismiss the case.

2. “A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not kfeep it from being a nuisance.” Civil Code (1910), § 4457.

3. A private nuisance is one limited in its injurious effect to one or a few individuals, which may injure either the person or property or both; and in either case a right of action accrues. Civil' Code (1910), §§ 4454, 4456.

4. Where a person purchases land adjacent to a nuisance already created, and improves such property by erecting dwellings thereon and rents the same to tenants who are injured by reason of such nuisance, this will not prevent such person from making complaint and having such nuisance enjoined and abated, in a proper case made. Savannah & Western Ry. Co. v. Woodruff, 86 Ga. 94 (3) (13 S. E. 156); Ga. R. &c. Co. v. Maddox, 116 Ga. 64, 78, 79 (42 S. E. 315); 16 Am. & Enc. Enc. Law (1st ed.), 934; People v. Detroit White Lead Works, 82 Mich. 471 (46 N. W. 735, 9 L. R. A. 722); 2 Wood on Nuisances, § 574; Austin v. Augusta Terminal R. Co., 108 Ga. 671 (34 S. E. 852, 47 L. R. A. 755). See Davis v. East Tenn. &c. Ry. Co., 87 Ga. 605 (13 S. E. 567).

No. 3033. November 18, 1922.

5. A continuing nuisance gives a new cause of action for each day of its continued maintenance. Butler v. Thomasville, 74 Ga. 570; Ga. Chemical & Mining Co. v. Colquitt, 72 Ga. 172; Civil Code (1910), § 4459; Mulligan v. Augusta, 115 Ga. 337 (41 S. E. 604); City of Atlanta v. Warnock, 91 Ga. 210 (18 S. E. 135, 23 L. R. A. 301, 44 Am. St. R. 17). 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 to have it abated. Mayor etc. of Waycross v. Houk, 113 Ga. 963 (39 S. E. 577). In such a case the statutory provision as embraced in Civil Code (1910), §§ 5329, 5331, does not afford an adequate remedy at law; and equity, having assumed jurisdiction, will grant full relief.

6. The assignment of error on the rejection of certain evidence offered by the plaintiff in error in the shape of certain ordinances of the Town of Rentz is without merit.

7. Error is assigned upon the refusal of the court to allow counsel to ask . the opinion of certain non-expert witnesses as to the effect of the ditch in question causing sickness of any sort, without giving the facts upon which the witnesses based their opinion. The court did not err in ex: - eluding this evidence.

8. The exception to the decree of the court as being a mandatory injunction, in that it ordered the abatement of the nuisance, is without merit ■ under the facts of this case. Goodrich v. Ga. R. &c. Co., 115 Ga. 340 (41 S. E. 659); Hendricks v. Jackson, 143 Ga. 106 (3) (84 S. E. 440).

9. The evidence authorized the verdict; and applying the principles ruled above to the facts of this ease, the court did not err in rendering the decree complained of, and in overruling the motion for new trial.

Judgment affirmed.

All the Justices concur. • 8. P. New and A. N. Silas, for plaintiff in error. Adams & Camp, contra.