General Consideration

Constitutionality. - Statutory definition of a nuisance is not vague and indefinite and therefore unconstitutional. Atlanta Processing Co. v. Brown, 227 Ga. 203 , 179 S.E.2d 752 (1971).

County noise ordinance deemed unconstitutional. - Trial court declared a Effingham County, Georgia noise ordinance to be unconstitutional and the county did not appeal that decision. Effingham County Bd. of Comm'rs v. Shuler Bros., 265 Ga. App. 754 , 595 S.E.2d 526 (2004).

Effect on common-law definition. - This section was not intended to change the common-law definition of a nuisance. State ex rel. Boykin v. Ball Inv. Co., 191 Ga. 382 , 12 S.E.2d 574 (1940).

Effect of Federal Aviation Act of 1958. - Federal Aviation Act of 1958, 49 U.S.C. § 1506, does not abridge or alter remedies existing at common law or by statute, and the provisions of this act are in addition to such remedies. Owen v. City of Atlanta, 157 Ga. App. 354 , 277 S.E.2d 338 , aff'd, 248 Ga. 299 , 282 S.E.2d 906 (1981), cert. denied, 456 U.S. 972, 102 S. Ct. 2235 , 72 L. Ed. 2 d 846 (1982).

Implied private right of action under federal statute. - If the cause of action is one that is traditionally relegated to state law, such as a nuisance action which is a classic area in which state law controls, under the United States Supreme Court's four-pronged test to be applied in analyzing the propriety of allowing a case to be maintained as an implied private right of action under a federal statute not specifically creating such a right, it is inappropriate to infer a cause of action based solely on federal law; this is especially true now, since the United States Supreme Court has directed the federal courts to concentrate on the second criterion of the four-pronged test, namely, the question of congressional intent to create or deny a right of recovery under the federal law. Noe v. Metropolitan Atlanta Rapid Transit Auth., 644 F.2d 434 (5th Cir.), cert. denied, 454 U.S. 1126, 102 S. Ct. 977 , 71 L. Ed. 2 d 114 (1981).

No presumption of legislative intent to authorize nuisance. - It is never to be presumed that the General Assembly intended to authorize a corporation to erect a nuisance materially tending to destroy the life or health of others. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

This section does not legalize a nuisance. Holman v. Athens Empire Laundry Co., 149 Ga. 345 , 100 S.E. 207 (1919); Cox v. DeJarnette, 104 Ga. App. 664 , 123 S.E.2d 16 (1961).

Indictable nuisances. - Former Civil Code 1910, § 4457 (see now O.C.G.A. § 41-1-1 ) is not the test of indictable nuisances under former Penal Code 1910, § 681 (see now O.C.G.A. § 41-1-6 ). Central of Ga. Power Co. v. State, 10 Ga. App. 448 , 73 S.E. 688 (1912).

Nuisances are anything that cause hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep the act from being a nuisance. A nuisance is permanent if the damage the act causes is complete when the action creating the nuisance first occurs and gives rise to a single cause of action that initiates the running of the statute of limitation. On the other hand, a nuisance is not permanent if the act causes continuing damage and is one which can and should be abated by the person erecting or maintaining it. In that case, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie and a fresh statute of limitations begins to run. Oglethorpe Power Corp. v. Forrister, 303 Ga. App. 271 , 693 S.E.2d 553 (2010).

Right of plaintiff must have been violated. - Act, to constitute a nuisance, must be in violation of some right of the plaintiff. Sheppard v. Georgia Ry. & Power Co., 31 Ga. App. 653 , 121 S.E. 868 (1924).

Expression "may otherwise be lawful" shows that the act complained of, insofar as the act causes "hurt, inconvenience, or damage to another" must be unlawful - that is a violation of some right of plaintiff - to constitute a nuisance. Southern Ry. v. Leonard, 58 Ga. App. 574 , 199 S.E. 433 (1938); Lawrence v. City of La Grange, 63 Ga. App. 587 , 11 S.E.2d 696 (1940).

Condition causing hurt or inconvenience. - Notion of "illegality" in Georgia involves much more than failure to comply with some particular directives which may or may not apply to an instrumentality at a given time. A condition may be illegal when it is objectionable only on grounds of causing "hurt or inconvenience," i.e., when it is a nuisance. This conclusion is directly authorized by the statutory definition of nuisance. Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).

Distinction between negligence and nuisance. - In cause of action brought under nuisance exception to municipal immunity, as to a jury's questions concerning nuisance and the ordinary reasonable man standard found in O.C.G.A. § 41-1-1 , the only real distinction between negligence and nuisance would seem to be that the latter involves a continued or repeating condition. One may, of course, dispute whether any negligence was involved in design and maintenance of a traffic signal. But, there would appear to be no room at all to doubt that the light was a repeating instrumentality. Thus, if there were negligence in design or maintenance, that negligence would of necessity give rise to a nuisance. Certainly a jury was authorized to so find, particularly in light of police officers' testimony that the light was a known hazard. Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).

Conformity to general law is no defense to nuisance action. Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).

Qualification on use of property. - Fact that the defendant's predecessor condemned a part of the plaintiff's land for railroad purposes, and used the part so condemned did not authorize it or its successor in title to maintain a nuisance to the damage of the plaintiff's other near-by property. Goble v. Louisville & N.R.R., 187 Ga. 243 , 200 S.E. 259 (1938).

Right to use one's property as one pleases implies a like right in every other person, and is qualified by the doctrine that the use in the first instance must be a reasonable one. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941); Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

When one acting solely from malevolent motives does injury to one's neighbor, to call such conduct the exercise of an absolute legal right is a perversion of terms. No statute or other rule of law in this state that confers upon an individual a right to maliciously injure another, regardless of what method may be employed to inflict such injury. On the other hand, everyone is entitled to the protection of the law against invasions of one's rights by others. The use of one's own property for the sole purpose of injuring another is not a right that a good citizen would desire nor one that a bad citizen should have. Hornsby v. Smith, 191 Ga. 491 , 13 S.E.2d 20 (1941).

Nuisance is generally applied to that class of wrongs that arise from the unreasonable, unwarranted, or unlawful use of property. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 156 Ga. App. 209 , 274 S.E.2d 653 (1980).

Restrictive covenant prohibiting "noxious or offensive activity" or anything "which may be or may become an annoyance or nuisance" is too vague, indefinite, and uncertain for enforcement in a court of equity by injunction, except insofar as these words may be included within the definition of a nuisance. Douglas v. Wages, 271 Ga. 616 , 523 S.E.2d 330 (1999).

Nuisance and trespass distinguished. - Nuisance is an indirect tort, while a trespass usually is a direct infringement of one's property rights. The distinction between trespass and nuisance consists in the former being a direct infringement of one's right of property, while in the latter the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from the act. In the one case the injury is immediate, in the other it is consequential, and generally results from the commission of an act beyond the limits of the property affected. Groover v. Hightower, 59 Ga. App. 491 , 1 S.E.2d 446 (1939); Cannon v. City of Macon, 81 Ga. App. 310 , 58 S.E.2d 563 (1950), later appeal, 89 Ga. App. 484 , 79 S.E.2d 816 (1954).

Violation of criminal law not necessarily a nuisance. - Violation of criminal law such as the pursuit of a business on Sunday will not be enjoined on the petition of an individual unless the violation amounts to a nuisance. Warren Co. v. Dickson, 185 Ga. 481 , 195 S.E. 568 (1938).

Cited in Center & Treadwell v. Davis, 39 Ga. 210 (1869); Rounsaville v. Kohlheim, 68 Ga. 668 (1882); Butler v. Mayor of Thomasville, 74 Ga. 570 (1885); Ison v. Manley, 76 Ga. 804 (1886); Horton v. Fulton, 130 Ga. 466 , 60 S.E. 1059 (1908); Williams v. Southern Ry., 140 Ga. 713 , 79 S.E. 850 (1913); Tate v. Mull, 147 Ga. 195 , 93 S.E. 212 (1917); Sanders v. City of Atlanta, 147 Ga. 819 , 95 S.E. 695 (1918); Pitner v. Shugart Bros., 150 Ga. 340 , 103 S.E. 791 (1920); Morrison v. Slappey, 153 Ga. 724 , 113 S.E. 82 (1922); Town of Rentz v. Roach, 154 Ga. 491 , 115 S.E. 94 (1922); Harris v. Sutton, 168 Ga. 565 , 148 S.E. 403 (1929); Jones v. City of Atlanta, 40 Ga. App. 300 , 149 S.E. 305 (1929); Atlantic Ref. Co. v. Farrar, 171 Ga. 371 , 155 S.E. 327 (1930); Thomoson v. Sammon, 174 Ga. 751 , 164 S.E. 45 (1932); Hall v. Moffett, 177 Ga. 300 , 170 S.E. 192 (1933); Wingate v. City of Doerun, 177 Ga. 373 , 170 S.E. 226 (1933); Georgia Power Co. v. Moore, 47 Ga. App. 411 , 170 S.E. 520 (1933); Pittard v. Summerour, 181 Ga. 349 , 182 S.E. 20 (1935); Perkerson v. Mayor of Greenville, 51 Ga. App. 240 , 180 S.E. 22 (1935); Dickson v. Warren Co., 183 Ga. 746 , 189 S.E. 839 (1937); Warren v. Georgia Power Co., 58 Ga. App. 9 , 197 S.E. 338 (1938); Poole v. Arnold, 187 Ga. 734 , 2 S.E.2d 83 (1939); Simpson v. Blanchard, 73 Ga. App. 843 , 38 S.E.2d 634 (1946); Leonard v. State ex rel. Lanier, 204 Ga. 465 , 50 S.E.2d 212 (1948); Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951); Jordan v. Orr, 209 Ga. 161 , 71 S.E.2d 206 (1952); Seckinger v. City of Atlanta, 213 Ga. 566 , 100 S.E.2d 192 (1957); Barrow v. Georgia Lightweight Aggregate Co., 103 Ga. App. 704 , 120 S.E.2d 636 (1961); Southeastern Liquid Fertilizer Co. v. Chapman, 103 Ga. App. 773 , 120 S.E.2d 651 (1961); Isley v. Little, 219 Ga. 23 , 131 S.E.2d 623 (1963); Dumus v. Renfroe, 220 Ga. 33 , 136 S.E.2d 753 (1964); Cronic v. State, 222 Ga. 623 , 151 S.E.2d 448 (1966); Town of Fort Oglethorpe v. Phillips, 224 Ga. 834 , 165 S.E.2d 141 (1968); Whitehead v. Hasty, 235 Ga. App. 331 , 219 S.E.2d 443 (1975); City of Atlanta v. Owen, 248 Ga. 299 , 282 S.E.2d 906 (1981); Columbus v. Smith, 170 Ga. App. 276 , 316 S.E.2d 761 (1984); Life for God's Stray Animals, Inc. v. New N. Rockdale County Homeowners Ass'n, 253 Ga. 551 , 322 S.E.2d 239 (1984); Meredith v. Thompson, 312 Ga. App. 697 , 719 S.E.2d 592 (2011); Wilbros, LLC v. State, 294 Ga. 514 , 755 S.E.2d 145 (2014); Camelot Club Condo. Assoc. v. Afari-Opoku, 340 Ga. App. 618 , 798 S.E.2d 241 (2017); Handberry v. Manning Forestry Servs., LLC, 353 Ga. App. 150 , 836 S.E.2d 545 (2019).

Power of Municipality to Create Nuisance

Municipality under a legal duty to create no nuisances. Insofar as the language in a requested charge by a defendant reflects this, it is redundant. Insofar as it states otherwise, it is simply wrong. Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).

Creating nuisance under guise of performing governmental function. - While it is true that a municipal corporation is not liable for the municipality's acts of negligence in discharging a governmental function, yet a municipal corporation cannot, under the guise of performing a governmental function, create a nuisance dangerous to life or health. Mayor of Savannah v. Palmerio, 242 Ga. 419 , 249 S.E.2d 224 (1978).

Effect of power to grade streets and establish drainage system. - General grant of power to grade streets and to establish in connection therewith a system of drainage does not carry with it any right on the part of the municipality to create and maintain a nuisance by causing surface water to be discharged upon the premises of a private citizen; and one may, when such a thing has been done, maintain against the city an action to recover the damages sustained in consequence thereof. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Effect of power to construct sewer and drain system. - Power to construct a system of sewers and drains does not authorize the municipal corporation to create a nuisance. In such a case the city cannot escape liability on the ground that the city is engaged in the performance of a governmental function. Cannon v. City of Macon, 81 Ga. App. 310 , 58 S.E.2d 563 (1950), later appeal, 89 Ga. App. 484 , 79 S.E.2d 816 (1954); City of Rome v. Turk, 235 Ga. 223 , 219 S.E.2d 97 (1975).

County's failure to maintain a culvert. - Failure of a county to adequately maintain a culvert, resulting in property damage from flooding, was a nuisance when the county clearly knew of the flooding problems, and knew that construction developments upstream, which the county had approved, contributed to the flooding. Fulton County v. Wheaton, 252 Ga. 49 , 310 S.E.2d 910 (1984), overruled on other grounds, DeKalb County v. Orwig, 261 Ga. 137 , 402 S.E.2d 513 (1991).

Actions against municipality. - Action sounding in tort may be brought against a municipal corporation for the creation or maintenance of a nuisance, without reference to any question of negligence, if danger to health or life is involved; and an action sounding in tort may be brought against a municipal corporation for the creation or maintenance of a nuisance if the defendant is negligent, even though the act was authorized to be done. Ingram v. City of Acworth, 90 Ga. App. 719 , 84 S.E.2d 99 (1954).

Petition set out a cause of action for damages for the maintenance by the defendant of a sewage disposal plant in such manner as to cause a continuing nuisance dangerous to life and health, and was not subject to general demurrer on the ground that the city was at the time engaged in a governmental function. Ingram v. City of Acworth, 90 Ga. App. 719 , 84 S.E.2d 99 (1954).

When a petition showed an improper maintenance of a sewerage disposal plant, with resulting injury to health and property damage, the fact that the alleged improper maintenance resulted from negligent acts on the part of the defendant city did not create a misjoinder of actions, but only strengthened the action as laid on the theory of a continuing nuisance. Ingram v. City of Acworth, 90 Ga. App. 719 , 84 S.E.2d 99 (1954).

In a case where the property owner claimed that the city was liable in nuisance arising out of a water main break that damaged the property owner's property, the property owner failed to prove that the city was liable for a nuisance because the property owner did not present any evidence to show how long it took the city to begin work to repair the city's water main, how long it took to stop the flow of water, or that the city failed to do so in a reasonable time. Atkinson v. City of Atlanta, 325 Ga. App. 70 , 752 S.E.2d 130 (2013).

In a case where the property owner claimed that the city was liable in nuisance arising out of a water main break that damaged the property owner's property, the property owner failed to prove that the city was liable for a nuisance because the property owner failed to show that the city operated or maintained a nuisance on the property owner's property as the water main break occurred only once and caused only one incident of flooding on the property, and the water was gone within about five days. Atkinson v. City of Atlanta, 325 Ga. App. 70 , 752 S.E.2d 130 (2013).

In a case where the property owner claimed that the city was liable in nuisance arising out of a water main break that damaged the property owner's property, the property owner did not show that the city had a proactive duty to repair in a timely manner all the damage to the property owner's property rather than compensate the property owner for damages to the property. Atkinson v. City of Atlanta, 325 Ga. App. 70 , 752 S.E.2d 130 (2013).

City could not be held liable for an alleged nuisance created by the homeowners' decision to plug an underground drainage pipe because there was no evidence that the city owned the pipe or exercised direct dominion and control over the pipe. Merlino v. City of Atlanta, 283 Ga. 186 , 657 S.E.2d 859 (2008).

Classes of Nuisances

1. In General

Classification dependent upon particular facts. - Which particular things may, and which may not, be condemned as a nuisance usually stand or fall upon their own particular facts. Benton v. Pittard, 197 Ga. 843 , 31 S.E.2d 6 (1944).

Classes of nuisances. - There are three classes of nuisances: (1) nuisances per se, such as the obstruction of a stream; (2) nuisances dependent on circumstances, such as the conduct of a lawful business in certain surroundings. Simpson v. DuPont Powder Co., 143 Ga. 465 , 85 S.E. 344 (1915); and (3) continuing nuisances which are complements of the other two, as distinguished from a permanent nuisance. City Council v. Lombard, 101 Ga. 724 , 28 S.E. 994 (1897).

2. Nuisance Per Se

Definition. - Nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstance, regardless of location or surroundings. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941); Gatewood v. Hansford, 75 Ga. App. 567 , 44 S.E.2d 126 (1947).

Structures lawfully erected. - Nothing that is lawful in its erection can be a nuisance per se. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Injunction. - Equity will not enjoin, as a nuisance per se, an act, occupation, or structure which is not a nuisance at all times or under all circumstances, regardless of location or surroundings. Asphalt Prods. Co. v. Beard, 189 Ga. 610 , 7 S.E.2d 172 (1940); Benton v. Pittard, 197 Ga. 843 , 31 S.E.2d 6 (1944).

3. Nuisance in Fact or Per Accidens

Definition. - Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Larger class of nuisances are termed nuisances in fact or nuisances per accidens, and consists of those acts, occupations, or structures which are not nuisances per se but may become nuisances by reason of the circumstances or the location and surroundings. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941); Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Lawful enterprises. - Larger class of nuisances are termed nuisances in fact or nuisances per accidens. Bacon v. Walker, 77 Ga. 336 (1886); Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

That which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance. City of Atlanta v. Due, 42 Ga. App. 797 , 157 S.E. 256 (1931); Asphalt Prods. Co. v. Beard, 189 Ga. 610 , 7 S.E.2d 172 (1940); Mayor of Savannah v. Palmerio, 242 Ga. 419 , 249 S.E.2d 224 (1978).

Business may be a nuisance either by reason of the business's location or by reason of the improper or negligent manner in which the business is conducted. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941).

Lawful business cannot be a nuisance per se, although, because of surrounding places or circumstances, or because of the manner in which it is conducted, it may become a nuisance. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Lawful business may, by reason of the business's location in a residential area, cause hurt, inconvenience, and damage to those residing in the vicinity and become a nuisance per accidens by reason of circumstances and surroundings. Camp v. Warrington, 227 Ga. 674 , 182 S.E.2d 419 (1971).

Public projects as nuisances. - That which the law authorizes to be done, if done as the law authorizes, is not a nuisance. If a public project is legislatively sanctioned the project cannot be adjudged a nuisance. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 156 Ga. App. 209 , 274 S.E.2d 653 (1980).

Improper execution of authorized act. - This section in defining a nuisance, and in saying that the lawfulness of the act does not keep the act from being a nuisance, does not mean that an act may amount to a nuisance if the act is authorized by law and then is executed in accordance with the judgment or conclusion reached by the municipal authorities in the exercise of the governmental function; but the true interpretation of this section is that an act which the law authorizes to be done may result in an actionable nuisance only when there is negligence or error in the execution of the plans and specifications adopted or prescribed by the governing authority. City of Atlanta v. Due, 42 Ga. App. 797 , 157 S.E. 256 (1931); Southland Coffee Co. v. City of Macon, 60 Ga. App. 253 , 3 S.E.2d 739 (1939).

If the act itself is legal, it only becomes a nuisance when conducted in an illegal manner to the hurt, inconvenience, or damage of another. Southern Ry. v. Leonard, 58 Ga. App. 574 , 199 S.E. 433 (1938); Southland Coffee Co. v. City of Macon, 60 Ga. App. 253 , 3 S.E.2d 739 (1939); Lawrence v. City of La Grange, 63 Ga. App. 587 , 11 S.E.2d 696 (1940).

If one does an act, of itself lawful, which being done in a particular place, necessarily tends to the damage of another's property, it is a nuisance; for it is incumbent on that one to find some other place to do that act when the act it will not be injurious or offensive. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941); Benton v. Pittard, 197 Ga. 843 , 31 S.E.2d 6 (1944); Miller v. Coleman, 213 Ga. 125 , 97 S.E.2d 313 (1957).

Importance of location of enterprise. - Nuisance may consist merely of the right thing in the wrong place, regardless of other circumstances. Benton v. Pittard, 197 Ga. 843 , 31 S.E.2d 6 (1944).

Thing that is lawful and proper in one locality may be a nuisance in another; in other words, a nuisance may consist merely of the right thing in the wrong place, regardless of other circumstances. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Though an act or thing be lawful, if, by reason of its location in a particular place it damages the property of another the act is a nuisance. Gatewood v. Hansford, 75 Ga. App. 567 , 44 S.E.2d 126 (1947).

Injunction. - Equity will not enjoin, as a nuisance per accidens, an act, business, occupation, or structure, which, not being a nuisance per se, does not become a nuisance by reason of the particular circumstances of its operation or the location and surroundings, as by some improper manner of operation or improper connected acts. Asphalt Prods. Co. v. Beard, 189 Ga. 610 , 7 S.E.2d 172 (1940); Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941); Benton v. Pittard, 197 Ga. 843 , 31 S.E.2d 6 (1944).

4. Continuing Nuisance

Definition. - Continuing nuisance does not necessarily mean a constant and unceasing nuisance, but a nuisance which occurs so often, and is so unnecessarily an incident of the use of property complained of, that it can be fairly said to be continuous, although not constant or unceasing. Farley v. Gate City Gas Light Co., 105 Ga. 323 , 31 S.E. 193 (1898); Keener v. Addis, 61 Ga. App. 40 , 5 S.E.2d 695 (1939).

Repetitive harm or inconvenience as nuisance. - Concept of nuisance involves repetition or condition causing hurt, inconvenience, or injury. The whole idea of nuisance is that of either a continuous or regularly repetitious act or condition which causes the hurt, inconvenience, or injury. A single isolated occurrence or act, which if regularly repeated would constitute a nuisance, is not a nuisance, until the act is regularly repeated. Leake v. City of Atlanta, 146 Ga. App. 57 , 245 S.E.2d 338 (1978), rev'd on other grounds, 243 Ga. 20 , 252 S.E.2d 450 (1979).

Continuance gives rise to new cause of action. - Every continuance of a nuisance which is not permanent, and which could and should be abated, is a fresh nuisance for which a new action will lie. Goble v. Louisville & N.R.R., 187 Ga. 243 , 200 S.E. 259 (1938).

When one creates a nuisance, and permits the nuisance to remain, it is treated as a continuing wrong, and as giving rise, over and over again, to causes of action. But the principle upon which one is charged as a continuing wrongdoer is that one has a legal right, and is under a legal duty, to terminate the cause of the injury. Keener v. Addis, 61 Ga. App. 40 , 5 S.E.2d 695 (1939).

Continuing nuisance gives a new cause of action for each day of the nuisance's 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 have the nuisance abated. Harbuck v. Richland Box Co., 204 Ga. 352 , 49 S.E.2d 883 (1948), later appeal, 207 Ga. 537 , 63 S.E.2d 333 (1951).

Plaintiff's right to equitable relief was not barred by the statute of limitations on grounds that the nuisance complained of had existed for a period of more than four years prior to the institution of litigation, since when there is a continuing nuisance, a new cause of action arises daily and a court of equity takes jurisdiction in such a case to avoid a multiplicity of suits. Scott v. Dudley, 214 Ga. 565 , 105 S.E.2d 752 (1958).

When the nuisance lay in the continuing contamination, not in the leaks which originally gave rise to the nuisance, damage was not complete and suit was not barred by the applicable four-year limitations period. Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727 , 426 S.E.2d 387 (1992).

When a municipality negligently constructs or undertakes to maintain a sewer or drainage system that causes the repeated flooding of property, a continuing abatable nuisance is established, for which the municipality is liable. Martin v. City of Ft. Valley, 235 Ga. App. 20 , 508 S.E.2d 244 (1998).

As the home buyers presented evidence that a developer's actions in clearing trees from the adjacent property increased the surface water flow and erosion on their land and made their drainage problem worse, these facts would support a finding of a continuing nuisance. Walker v. Johnson, 278 Ga. App. 806 , 630 S.E.2d 70 (2006), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146 , 661 S.E.2d 195 (2008).

Homeowner's nuisance action against a county based on the county's failure to maintain a deteriorating retaining wall was not barred by res judicata based on the owner's prior nuisance action for diminution in value arising out of a failure to maintain a storm water drainage system because the present suit was for a continuing nuisance. DeKalb County v. Heath, 331 Ga. App. 179 , 770 S.E.2d 269 (2015), cert. denied, No. S15C1110, 2015 Ga. LEXIS 424 (Ga. 2015).

Original nuisance always precedes continuing nuisance. - If there was no original nuisance, there could be no continuing nuisance. Southern Ry. v. Leonard, 58 Ga. App. 574 , 199 S.E. 433 (1938); Davis v. Beard, 202 Ga. App. 784 , 415 S.E.2d 522 (1992).

Duty of wrongdoer to terminate continuing nuisance. - When one creates a nuisance, and permits the nuisance to remain, the nuisance is treated as a continuing wrong, and as giving rise, over and over again, to causes of action. But the principle upon which one is charged as a continuing wrongdoer is that one has a legal right, and is under a legal duty, to terminate the cause of the injury. Keener v. Addis, 61 Ga. App. 40 , 5 S.E.2d 695 (1939).

Trial court did not err by denying a church's motion for judgment notwithstanding the verdict in a property owner's action for trespass and nuisance on the ground that there was an absence of evidence of negligence or proximate cause linking the church to the owner's injuries because the evidence showed that excess rainwater flowed from the church property onto the owner's property in a continuing manner; even though the church did not cause the initial leak, own the water that leaked, or have any responsibility for the compaction of the soil around the underground utility lines, the jury could find that the initial leak caused a condition on its property that in turn caused continued excessive flooding of the owner's property thereafter. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677 , 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).

Prescription does not run in favor of a continuing nuisance. Gabbett v. City of Atlanta, 137 Ga. 180 , 73 S.E. 372 (1911).

Equity jurisdiction of continuing nuisance. - If a nuisance is a continuing one, a court of equity will take jurisdiction to enjoin such a nuisance. Ford v. Crawford, 240 Ga. 612 , 241 S.E.2d 829 (1978).

When plaintiff entitled to equitable relief. - If alleged conduct constitutes a continuing nuisance, the plaintiff is entitled to equitable relief. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Accrual right of action. - Nuisance, permanent and continuing in the nuisance's character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run. City of La Fayette v. Hegwood, 52 Ga. App. 168 , 182 S.E. 860 (1935).

Manner of Proof

Contents of complaint. - In a nuisance action the complainant must show the existence of the nuisance complained of, that one has suffered injury, and that the injury complained of was caused by the alleged nuisance. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941).

Nuisance per accidens. - Petition alleging that, at a place of business located on a main thoroughfare, outside the corporate limits of any municipality, beer and wine are being sold, a juke box operated, both day and night, making a loud noise which disturbs and hinders the residents of the neighborhood from sleep, that drunk people congregate and come out of the place cursing, fighting, and making undue noise, and many people of disreputable character gather, and that beer is sold there on Sunday in violation of law, is sufficient to charge the existence of an abatable public nuisance, and therefore stated a cause of action and one which the solicitor-general (now district attorney) could bring proceedings to abate. Davis v. State ex rel. Lanham, 199 Ga. 839 , 35 S.E.2d 458 (1945) (decided, in part, under former Code 1933, § 26-6103).

See Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Information of a district attorney filed on the application of a citizen - to the effect that the defendant knowingly maintained and used a building for the purposes of gaming and had in the building a certain paper card, dice and other contents, which should also be declared to be a nuisance - were sufficient, as against the general and special grounds of the defendant's demurrer, to set forth a cause of action, to abate the place as a common nuisance. Thornton v. Forehand, 211 Ga. 658 , 87 S.E.2d 865 (1955).

DFL Indirect damage of aesthetic value. - Allegations that the appellees' actions taken on the appellees' own property have indirectly damaged the aesthetic value of the plaintiff's property fail to state a cause of action. Jillson v. Barton, 139 Ga. App. 767 , 229 S.E.2d 476 (1975).

When the allegations of the petition could be construed as sufficient to show creation of a public nuisance, there being no allegations that the abatement of the nuisance in the manner authorized by law would not afford the petitioners adequate relief, a writ of mandamus would not lie. State Hwy. Dep't v. Reed, 211 Ga. 197 , 84 S.E.2d 561 (1954).

Insufficient allegations. - Allegations of the petition seeking to enjoin an alleged nuisance in operating an asphalt and cement-mixing and manufacturing plant as to the spilling of concrete and asphalt in a public street and its effect on persons walking along the street related to a public nuisance, and stating no special damage, showed no cause of action. Asphalt Prods. Co. v. Beard, 189 Ga. 610 , 7 S.E.2d 172 (1940).

Petition fell short of describing a public nuisance when there was no allegation that from the points where the sewage was deposited by the defendant city the streams flowed through the lands owned by anyone other than the plaintiff, or that anyone other than the plaintiff was damaged thereby. Vickers v. City of Fitzgerald, 216 Ga. 476 , 117 S.E.2d 316 (1960), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635 , 452 S.E.2d 488 (1994).

Because an Olympic Committee acted in a lawful manner in operation of an Olympic Park, and no evidence was presented to the contrary, a nuisance claim against the committee lacked merit. Anderson v. Atlanta Comm. for the Olympic Games, Inc., 261 Ga. App. 895 , 584 S.E.2d 16 (2003), aff'd, sub nom. Atlanta Comm. for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116 , 598 S.E.2d 471 (2004).

Test for nuisance. - Determining factor in an alleged nuisance is not its effect upon persons who are invalids, afflicted with disease, bodily ills, or abnormal physical conditions, or who are of nervous temperament, or peculiarly sensitive to annoyances or disturbances of the character complained of. Warren Co. v. Dickson, 185 Ga. 481 , 195 S.E. 568 (1938).

In the determination of whether a given state of facts discloses a nuisance, the general effect of the condition shown on an ordinary person, rather than one of abnormal sensibilities and feelings, is the proper consideration. Dorsett v. Nunis, 191 Ga. 559 , 13 S.E.2d 371 (1941).

Test of whether an act or thing complained of is a nuisance is whether it would be offensive to persons of ordinary feelings and sensibilities, and not those of fastidious taste or temperament. Benton v. Pittard, 197 Ga. 843 , 31 S.E.2d 6 (1944).

Business as nuisance. - To make a business a nuisance the business must be such to people of ordinary nature or condition; it is not sufficient if the business be simply offensive to delicate and sensitive organizations. Ruff v. Phillips, 50 Ga. 130 (1873).

Threat of inconvenience. - Mere apprehension of inconveniences arising from a filling-station in course of construction, the same being for a lawful business use, is not sufficient to authorize an injunction. Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472 , 67 S.E. 1126 (1910); Standard Oil Co. v. Kahn, 165 Ga. 575 , 141 S.E. 643 (1928).

Negligence not required. - Negligence is not a necessary ingredient of a cause of action growing out of a nuisance. Cannon v. City of Macon, 81 Ga. App. 310 , 58 S.E.2d 563 (1950), later appeal, 89 Ga. App. 484 , 79 S.E.2d 816 (1954).

Comfortable enjoyment of premises must be sensibly diminished. - In a nuisance action the occupants of a dwelling house must show that the comfortable enjoyment of the premises has been sensibly diminished, either by actual, tangible injury to the property itself, or by the promotion of such physical discomfort as detracts sensibly from the ordinary enjoyment of life. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941); Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Jury determination of public nuisance. - Whether or not the acts of the defendant constituted a public nuisance, as contended by the plaintiff and denied by the defendant, is an issue for the jury to determine. Scott v. Reynolds, 70 Ga. App. 545 , 29 S.E.2d 88 (1944).

While it is no longer required that the plaintiff in a nuisance case show, as the plaintiff had to do at common law, a freehold interest in the property affected by the nuisance, and while the plaintiff no longer need show damage to the realty itself, the plaintiff must still show that the condition is injurious by reason of its relationship to the plaintiff's home or property in the neighborhood where it is located, or else that it is injurious by reason of its constituting an obstruction to streets or sidewalks and like places used by the public generally for passage, which obstructions were at common law regarded as public nuisances because they interfered with the public right of passage. Stanley v. City of Macon, 95 Ga. App. 108 , 97 S.E.2d 330 (1957).

Damages

Nominal damages. - When a nuisance is shown to exist, the law imports damages for an injury to the right, and at least nominal damages may be recovered to protect the right. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941).

Damages by public nuisance. - Private citizen specially damaged by a public nuisance may proceed in the citizen's own name and behalf to have the nuisance abated. Savannah, F. & W. Ry. v. Gill, 118 Ga. 737 , 45 S.E. 623 (1903).

Manner of alleging damages. - General allegation of damage is sufficient to entitle a recovery of all damages that are the natural consequence of the nuisance; but when special damages are alleged, the defendant should be apprised of the items thereof. Exley v. Southern Cotton Oil Co., 151 F. 101 (S.D. Ga. 1907).

Recovery of damages. - In cases of nuisances which cause permanent injury to land, the ordinary rule is that the measure of damages is the depreciation in the market value; in regard to nuisances which are of a nonpermanent, abatable, or temporary nature, the depreciation in the usable or rental value ordinarily furnishes the measure. But, under some circumstances, there may also be a recovery for special damages. Ward v. Southern Brighton Mills, 45 Ga. App. 262 , 164 S.E. 214 (1932).

There can be no recovery for damage flowing merely from an improper or defective or negligent construction or maintenance of a public improvement which results in an abatable continuing nuisance on the theory that plaintiff's property has been appropriated by its erection and maintenance. Rhines v. Commissioners of Chatham County, 50 Ga. App. 844 , 179 S.E. 140 (1935).

Damages for depreciation in the market value of property are appropriate in a suit against a municipality for the taking or damaging of property for public use and also in a suit for a permanent and continuing nuisance created by the municipality, recovery of such damages must be had within four years from the date of the original injury. City of La Fayette v. Hegwood, 52 Ga. App. 168 , 182 S.E. 860 (1935).

Owner-occupant is entitled to recover damages for annoyance and discomfort temporarily depriving the owner of the unrestricted use and full enjoyment of the owner's premises, in addition to damages for permanent injury to the freehold and for pain and suffering as a result of the maintenance of a nuisance. Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285 , 76 S.E.2d 647 (1953).

If permanent injury is sustained as the result of the maintenance of a nuisance, then the owner of the property damaged is entitled to compensation for such permanent injury, whether the nuisance is abated or abatable. Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285 , 76 S.E.2d 647 (1953).

In the case of a private abatable nuisance, such as the operation of an asphalt mixing plant, the plaintiff is entitled to recover for any direct damage to the plaintiff's person or to the plaintiff's property resulting from the nuisance, accruing within the statute of limitations and up to the filing of the petition. Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285 , 76 S.E.2d 647 (1953).

Owner of a dwelling house which the owner occupies as a home is entitled to just compensation for the annoyance and discomfort occasioned by the maintenance, by another, of a nuisance on adjacent premises. Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285 , 76 S.E.2d 647 (1953).

For damages for permanent injury to property for an unabatable nuisance, there can be but one recovery. "A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance . . . Where the original nuisance to land is of a permanent character so that the damages inflicted thereby are permanent, a recovery not only may, but must, be had for the entire damages in one action; and such damages accrue from the time the nuisance is created, and from that time the statute of limitations begins to run." Price v. Georgia Indus. Realty Co., 132 Ga. App. 107 , 207 S.E.2d 556 (1974).

Apportionment of damages. - Court of equity, acquiring jurisdiction for the purpose of abating a nuisance, will also, upon proper averments, extend such jurisdiction to the ascertainment and determination of the damages suffered by reason of the nuisance, and in such event a court of equity may severally apportion damages among the defendants for the defendants' proportionate contribution to the injury. Vaughn v. Burnette, 211 Ga. 206 , 84 S.E.2d 568 (1954).

Illustrative Cases

Airplanes. - Since the evidence showed that at least 75 flights were made over the plaintiff's school building daily at altitudes of from 50 to 75 feet, just over the top of the plaintiff's trees, that the danger necessarily created thereby to the life and safety of those occupying the plaintiff's premises, the noise and vibration caused thereby, and the distracting effect on the plaintiff's students made further operation of the plaintiff's school impracticable, and that by such flights the right to enjoy freely the use of the plaintiff's property has been substantially lessened, a continuing nuisance was established which equity would enjoin. Scott v. Dudley, 214 Ga. 565 , 105 S.E.2d 752 (1958).

Private nuisance between airport and pilot not created. - LLC that declared Chapter 11 bankruptcy committed trespass in violation of O.C.G.A. § 51-9-10 when the LLC interfered with a pilot's right to use an airport the LLC owned after the LLC gave the pilot permission to do so, but the pilot's right was limited to use of the taxiways and runway and the pilot violated O.C.G.A. § 51-9-10 by entering the airport for other purposes after being told not to do so; although the court awarded the LLC $100 for the pilot's trespass and the pilot $600 for the LLC's trespass, neither party showed that the opposing party committed a private nuisance in violation of Georgia law, and the court refused to award punitive damages under O.C.G.A. § 51-12-5.1 or attorney's fees under O.C.G.A. § 13-6-11 to either party. Flyboy Aviation Props., LLC v. Franck (In re Flyboy Aviation Props., LLC), 525 Bankr. 510 (Bankr. N.D. Ga. 2015).

Air pollution. - Pollution of the air, actually necessary to the reasonable enjoyment of life and indispensable to the progress of society, is not actionable; but the right must not be exercised in an unreasonable manner so as to inflict injury upon another unnecessarily. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Asphalt mixing plant. - While the operation of an asphalt mixing plant is not a nuisance per se, it may become a nuisance in fact or a nuisance per accidens by reason of the circumstances or the location and surroundings. Sam Finley, Inc. v. Russell, 75 Ga. App. 112 , 42 S.E.2d 452 (1947).

Asphalt-manufacturing and cement-mixing plant. - Operation of an asphalt-manufacturing and cement-mixing plant is not a nuisance per se. Nor does it become a nuisance per accidens, if it is conducted in a manufacturing section of a city, merely because the plant is operated by coal or some fuel discharging obnoxious smoke and cinders, or releases dust, or is accompanied by loud rattling noises during the day and night, and is within 200 feet of a residence, when it is not shown that such operation is in a residence neighborhood, or that the manner of operation is unusual in a business of this character, or unnecessary and avoidable. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941).

Recreational use of baseball park. - Playing of ordinary games of baseball, or the operation of a park for such games, in a lawful, decent, and orderly manner, and accompanied only by the usual cheers and noise of spectators, where these contests are harmlessly played and enjoyed, is not a nuisance per se. Such games or pursuits may, however, become a nuisance per accidens, when there is indecent, disorderly, or improper conduct of the players or spectators; or when, in a residential community, there is accompanying noise, which is excessive and unreasonable, or which recurs at unusual and unreasonable hours of the night, so as to prevent the sleep of ordinary, normal, reasonable persons of the neighborhood. Warren Co. v. Dickson, 185 Ga. 481 , 195 S.E. 568 (1938).

Billboards. - Billboard erected by defendants on the defendants' own land, which is not otherwise a nuisance, does not become one merely because the billboard is erected maliciously or from spite or ill will, when the billboard serves a useful purpose. Campbell v. Hammock, 212 Ga. 90 , 90 S.E.2d 415 (1955).

Slaughterhouses and similar enterprises. - Certain businesses or structures, such as slaughterhouses and certain foul-smelling factories, are so offensive to the senses that they must be removed from the limits of cities and towns, and even from the neighborhood of family residences. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Business solicitation of private home. - To arbitrarily declare, without qualification, that every solicitor who goes to a private home to try to conduct an otherwise perfectly legal business is a nuisance and subject to fine or imprisonment is an unreasonable interference with a solicitor's normal legal rights, and is without due process of law. De Berry v. City of La Grange, 62 Ga. App. 74 , 8 S.E.2d 146 (1940).

Church in residential section. - Church though erected in a residential section is not per se a nuisance. Dorsett v. Nunis, 191 Ga. 559 , 13 S.E.2d 371 (1941).

Creating and spreading dust. - Creation and spreading of dust in such large and unusual quantities as unreasonably to contaminate the atmosphere and endanger the health and lives of the citizens is not within the actual or implied authority of an airport franchise, and those responsible therefor, despite any immunity or limited liability, may be held to full accountability for the maintenance of a nuisance. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Spread of dust upon the property of another in excessive and unreasonable quantities may amount to a physical invasion of another's property rights. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Dust is a physical substance, or an aggregation of substances, gathered from the earth. It may contain impurities and result directly in disease or physical injury; one cannot be forced to endure dust from the negligence of another even though the business from which the dust springs may be expressly authorized by law. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Fair occupying street. - Ferris wheels and other devices for amusement, which fair a company of the state militia is permitted to station on the street for a week, is a public nuisance and a court of equity has jurisdiction, at the instance of the solicitor-general (now district attorney), to restrain it by injunction. City Council v. Reynolds, 122 Ga. 754 , 50 S.E. 998 , 106 Am. St. R. 147 , 69 L.R.A. 564 (1905).

Filling station. - Filling-station is not per se a nuisance. Standard Oil Co. v. Kahn, 165 Ga. 575 , 141 S.E. 643 (1928).

Injuries and inconveniences to persons residing near filling station, such as noises, etc., which result ordinarily and from necessity in the conduct of their business of repairing cars, trucks, and tires, are not to be classed as nuisances. Wilson v. Evans Hotel Co., 188 Ga. 498 , 4 S.E.2d 155 (1939).

Flooding after plugging of underground drainage pipe. - In a suit involving two landowning couples, it was error to grant summary judgment to the second couple on the first couple's nuisance claim after the second couple plugged an underground drainage pipe. Although the act of plugging the pipe might not have been wrongful in itself, the potential consequence of the uphill flooding of the first couple's property after the pipe was plugged created an issue of fact as to whether the couple could be held liable for creating a continuing nuisance. Merlino v. City of Atlanta, 283 Ga. 186 , 657 S.E.2d 859 (2008).

Gaming house. - Maintenance of a gaming house or a gaming place is a public nuisance. Thornton v. Forehand, 211 Ga. 658 , 87 S.E.2d 865 (1955).

Veterinary hospital. - Operation of a dog and cat hospital is a lawful enterprise and is not a nuisance per se, and cannot be enjoined unless it becomes a nuisance by reason of the particular circumstances of its improper operation or improper connected acts. Powell v. Garmany, 208 Ga. 550 , 67 S.E.2d 781 (1951).

Injury to health. - All injury to health is special, and necessarily limited in its effect to the individual affected, and is, in its nature, irreparable. It matters not that others within the sphere of the operation of the nuisance, whether public or private, may be affected likewise. Hunnicutt v. Eaton, 184 Ga. 485 , 191 S.E. 919 (1937).

Livery stable. - Livery stable in a town is not necessarily a nuisance in itself; and therefore a court of equity has no jurisdiction to restrain by injunction either the completion of a building because intended for that purpose, or its appropriation to the use intended. Thomoson v. Sammon, 174 Ga. 751 , 164 S.E. 45 (1932).

Hog and chicken feed manufacturing plant. - Mere erection of a plant for the manufacture of hog and chicken feed from the entrails from poultry and other animals is not without more a nuisance per se, and the allegations of the petition do not show it to be such. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Noise. - When noise accompanies an otherwise lawful business or pursuit, the question whether such noise is a nuisance depends upon the nature of the locality as a residence community or otherwise, on the degree of intensity and disagreeableness of the sounds, on their times and frequency, and in all cases, under the preceding rules, on their effect, not upon peculiar and unusual individuals, but upon the ordinary, normal, reasonable persons of the locality. Warren Co. v. Dickson, 185 Ga. 481 , 195 S.E. 568 (1938).

Noxious trade or business as nuisance. - To constitute a nuisance, it is not necessary that a noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable. Benton v. Pittard, 197 Ga. 843 , 31 S.E.2d 6 (1944); Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946); City of Macon v. Cannon, 89 Ga. App. 484 , 79 S.E.2d 816 (1954); Miller v. Coleman, 213 Ga. 125 , 97 S.E.2d 313 (1957).

Nuisance claim barred by statute of repose. - Purchaser's nuisance claims against a county, the county health department, and builders were barred by the statute of repose, O.C.G.A. § 9-3-51 , because the purchaser could not maintain a nuisance action under the facts asserted in the purchaser's complaint; a plaintiff cannot maintain a nuisance claim that is based upon damage to a house resulting from a defect constructed into the house that was concealed from the plaintiff by the builder and/or the seller because, instead, the applicable causes of action are fraud against the seller and/or negligent construction against the builder. Wilhelm v. Houston County, 310 Ga. App. 506 , 713 S.E.2d 660 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. 2012).

Obstructing streets. - Proper authorities may entertain an application to abate a nuisance caused by the obstruction of a city street or public alley. Carlisle v. Wilson, 110 Ga. 860 , 36 S.E. 54 (1900); Robins v. McGehee, 127 Ga. 431 , 56 S.E. 461 (1907); Hendricks v. Jackson, 143 Ga. 106 , 84 S.E. 440 (1915); Hendricks v. Carter, 21 Ga. App. 527 , 94 S.E. 807 (1918).

Action to abate nuisance, caused by obstruction of a city street or public alley, may be maintained by anyone whose property will be injuriously affected. Coker v. Atlanta, K. & N. Ry., 123 Ga. 483 , 51 S.E. 481 (1905).

When there is actual obstruction of a portion of a road intended for travel, actual interference or inconvenience is immaterial. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817 , 16 S.E.2d 753 (1941).

If a street or alley was a public street or alley, the obstruction or encroachment upon it by an adjoining landowner would constitute a public nuisance subject to abatement on petition of a user of the alley if special injury were shown to have occurred to the user by the obstruction. Henderson v. Ezzard, 75 Ga. App. 724 , 44 S.E.2d 397 (1947).

When, in an equitable petition, the only prayer for specific relief was that the defendant be temporarily restrained and permanently enjoined from maintaining a barricade or obstruction, which it had placed in a public street, or that it be required to abate the alleged nuisance, and the barricade or obstruction was fully completed and existing when the suit was instituted, it was erroneous to overrule a general demurrer (now motion to dismiss) to the petition as amended, which pointed out that the plaintiff was not entitled to the relief prayed for since it has an adequate and a complete remedy at law; a party who complains only of a completed existing obstruction in a public street must pursue the remedy which the statute affords that party. City of East Point v. Henry Chanin Corp., 210 Ga. 628 , 81 S.E.2d 812 (1954).

Permanent obstruction of city streets. - Right to the use of the streets of a city is in the public, and any permanent obstruction thereof which materially impedes travel is a nuisance per se. Williamson v. Souter, 172 Ga. 364 , 157 S.E. 463 (1931).

Any permanent structure in a road which materially interferes with travel is a nuisance per se, and any obstruction permanent in nature or continuously maintained, which interferes with the free use of the road by the public, is a public nuisance, and it is immaterial that space may be left on either side of the obstruction for the passage of the public. The public has the right to the unobstructed use of the whole road as the road was acquired by the county or city. Harbuck v. Richland Box Co., 204 Ga. 352 , 49 S.E.2d 883 (1948), later appeal, 207 Ga. 537 , 63 S.E.2d 333 (1951).

In view of evidence that a property owner's private road impeded the necessary passage of a city's emergency personnel so as to significantly endanger the health and safety of those persons residing at apartment complexes adjacent to the road, the owner was improperly granted summary judgment in the city's suit seeking abatement of a public nuisance under O.C.G.A. § 41-1-2 . City of College Park v. 2600 Camp Creek, LLC, 293 Ga. App. 207 , 666 S.E.2d 607 (2008).

Permanent structures which do not interfere with travel. - Permanent structures which do not interfere with travel, and which are erected for public purposes, such as telegraph and telephone poles, and the like, are permissible; it is not every use by an individual of a street or highway which constitutes a public nuisance. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817 , 16 S.E.2d 753 (1941).

Any permanent structure in a public road which materially interferes with travel therein is a nuisance per se. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817 , 16 S.E.2d 753 (1941).

If a street or alley was a public street or alley, the obstruction or encroachment upon it by an adjoining landowner would constitute a public nuisance subject to abatement on petition of a user of the alley if special injury were shown to have occurred to the user by the obstruction. Henderson v. Ezzard, 75 Ga. App. 724 , 44 S.E.2d 397 (1947).

Since the evidence was uncontradicted that an alley had been used by the public in general for more than 20 years prior to the alley's obstruction 30 years prior to trial by the defendant, a finding was demanded that the public had acquired a prescriptive right to the free and unobstructed use of the alley and that it was a public alley, and since prescription does not run against a municipality as to land held for the benefit of the public, such as a public alley, the obstruction must be removed. Henderson v. Ezzard, 75 Ga. App. 724 , 44 S.E.2d 397 (1947).

Cellular tower was not a nuisance as the tower was lawfully constructed. Sanders v. Henry County, F.3d (11th Cir. July 17, 2012)(Unpublished).

Pavement broken by ordinary use. - Private corporation is not liable to a person injured by the crumbling of the pavement on a sidewalk which was caused by ordinary wear and tear of its trucks when crossing to enter one of its alleys. McAfee v. Atlantic Ice & Coal Corp., 26 Ga. App. 25 , 105 S.E. 631 (1920).

State prison labor on county projects. - Utilizing state prison labor on county projects is not, by itself, "nuisance" for which the county would be liable; the county could not be liable for a nuisance unless the act complained of amounted to a taking for public purposes. West v. Chatham County, 177 Ga. App. 417 , 339 S.E.2d 390 (1985).

Public institution. - Fact alone that a proposed clinic is to be operated as a public institution would not necessarily prevent the clinic from being a nuisance if located in a residential section. Benton v. Pittard, 197 Ga. 843 , 31 S.E.2d 6 (1944).

"Purpresture." - Purpresture as defined at common law, and recognized in this and other states, is when one encroaches and makes that serviceable to one which belongs to many. Thus, any encroachment upon a public street or highway is a purpresture; and if the public use is impeded or rendered less commodious, such encroachment is generally not only a purpresture, but also technically a public nuisance, regardless of the degree of interference with the common enjoyment. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817 , 16 S.E.2d 753 (1941).

It is not true that every purpresture is a public nuisance. It may or may not be such, according to the particular facts. Although the two may coexist, either may exist without the other. The rule both in reason and by authority is that, unless the public sustain or may sustain some degree of inconvenience or annoyance in the use of a public highway or street or other public property, there is no public nuisance. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817 , 16 S.E.2d 753 (1941).

While there may be language in some decisions indicating that a purpresture is always a public nuisance, the terms are not synonymous. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817 , 16 S.E.2d 753 (1941).

Railroads or other quasi-public facilities. - If the relocation of the defendant's track was done under lawful authority, the act would not constitute a nuisance. If the track was relocated in a proper manner and was maintained in a proper manner there was no nuisance. Tracks are laid down for the purpose of operating trains thereon. If the trains are operated in a proper manner, such operation does not constitute a nuisance. Necessarily the running of trains makes some noise and produces some vibrations. Locomotives pulling trains emit some smoke, sparks, and cinders, but these incidental results do not necessarily constitute a nuisance, but are the necessary incidents of the franchise granted a railroad company in connection with the conduct of its business. Southern Ry. v. Leonard, 58 Ga. App. 574 , 199 S.E. 433 (1938).

Injuries and inconveniences to persons residing near railroads or other quasi-public facilities from noises of locomotives, rumbling of cars, vibrations produced thereby, and smoke, cinders, and soot, and the like, which result from the ordinary and necessary, and therefore proper, use and conduct of such works, are not nuisances, but are the necessary concomitants of the franchises granted. Central of Ga. R.R. v. Collins, 232 Ga. 790 , 209 S.E.2d 1 (1974).

What is merely a matter of convenience to a railroad company is not a necessity and may constitute a nuisance. Central of Ga. R.R. v. Collins, 232 Ga. 790 , 209 S.E.2d 1 (1974).

Sale of intoxicants. - Illegal sale of intoxicating liquors is a public nuisance, affecting the whole community in which the sale is carried on, and may be abated by process instituted in the name of the state. Lofton v. Collins, 117 Ga. 434 , 43 S.E. 708 , 61 L.R.A. 150 (1903); Walker v. McNelly, 121 Ga. 114 , 48 S.E. 718 (1904); Dispensary Comm'rs v. Hooper, 128 Ga. 99 , 56 S.E. 997 (1907).

Keeping or maintaining of any place or resort where intoxicating liquor is sold or kept for sale in a dry county, in violation of the provisions of Ch. 10 of T. 3 is a public, common nuisance, which may be abated by writ of injunction issued out of the superior court upon a bill filed by the attorney or the district attorney of the circuit, or by any citizen or citizens of such county. Ogletree v. Atkinson, 195 Ga. 32 , 22 S.E.2d 783 (1942).

Private citizen cannot maintain an action to enjoin the operation of a retail liquor business without a valid license in a "wet" county unless the citizen has sustained special injury, and its abatement must proceed for the public on information filed by the solicitor general (now district attorney). Mabry v. Shikany, 223 Ga. 513 , 156 S.E.2d 364 (1967).

Smoke. - To constitute smoke a nuisance, it must be such as to produce a visible, tangible, and appreciable injury to property, or such as to render it specially uncomfortable or inconvenient, or to materially interfere with the ordinary comfort of human existence. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941).

Smoke, unaccompanied with noise or noxious vapor, noise alone, offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877 , 16 S.E.2d 771 (1941).

Trial court erred by granting the neighbors' motion for summary judgment in a property owners' action to recover damages arising from smoke emanating from the neighbors' outdoor fireplace because the evidence was sufficient to create a jury question on the issue of whether the smoke from the neighbors' outdoor fireplace would reasonably interfere with an ordinary person's enjoyment of life; the neighbors had a fire in their outdoor fireplace approximately thirty times in a three-year period, and each time, the owners could smell the smoke in their home and suffered from itchy eyes, headaches, scratchy throats, and breathing problems. Weller v. Blake, 315 Ga. App. 214 , 726 S.E.2d 698 (2012).

Steam laundry is not a nuisance per se, and "smoke is not per se a nuisance" but a business otherwise lawful may become a nuisance in fact, or a nuisance per accidens, by reason of improper operation, or by reason of its location and the injury produced by such a lawful business is actionable if it produces that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable. Gatewood v. Hansford, 75 Ga. App. 567 , 44 S.E.2d 126 (1947).

Taxi cabs. - In a wrongful death and nuisance suit wherein the victim was killed while traveling in a taxi cab on a state highway, and the taxi cab had passed a mandatory city inspection the day prior, the trial court properly granted summary judgment to the city on the nuisance claim; as a matter of law, the city had no notice of a dangerous condition within the meaning of a nuisance via its inspection as, even though there was evidence in the record that the inspector did not measure tire tread depth, there was no evidence that taxicabs with insufficient tread on their tires routinely passed city inspections and thereafter were involved in collisions that caused injury. Heller v. City of Atlanta, 290 Ga. App. 345 , 659 S.E.2d 617 (2008), aff'd, Ga. DOT v. Heller, 285 Ga. 262 , 674 S.E.2d 914 (2009).

Decedent was killed when the taxi in which the decedent was riding spun out of control on a rain-slick road and hit a tree. An isolated incident involving a city inspector's giving the taxi a passing grade despite the taxi's extremely worn tires was insufficient to give rise to a nuisance claim against the city. Ga. DOT v. Heller, 285 Ga. 262 , 674 S.E.2d 914 (2009).

Mills. - Appeals court affirmed summary judgment for a chip mill; the mill was operated lawfully in a county location that the mill and county specifically negotiated and rezoned for the mill's operation, and the lawful operation was not conditioned on hours of operation, so the mill's operation was not a nuisance. If the act is lawful in itself, it becomes a nuisance only when conducted in an illegal manner to the hurt, inconvenience, or damage of another. Effingham County Bd. of Comm'rs v. Shuler Bros., 265 Ga. App. 754 , 595 S.E.2d 526 (2004).

Display and sale of tombstones and monuments. - Mere display and sale of tombstones and monuments designed and intended to be placed over the bodies and graves of deceased persons, such display being made on a lot in an exclusively residential section and in such manner as to present a "graveyard appearance," is not a nuisance, and may not be enjoined by residents and owners of property in the vicinity, on the grounds that it injuriously affects the values of their properties, and that the constant appearance of the spectacle would prey upon the minds and injuriously affect the health of the individuals. Grubbs v. Wooten, 189 Ga. 390 , 5 S.E.2d 874 (1939).

Increase in traffic congestion. - Increase in traffic congestion in front of property resulting from construction of townhouse on adjacent property is a fanciful assertion of harm and does not constitute a nuisance. Goddard v. Irby, 255 Ga. 47 , 335 S.E.2d 286 (1985).

Unsightliness of adjacent property. - Unsightliness of adjacent property alone, tending to devalue the adjoining property, is not such inconvenience as to amount to a nuisance for which an injunction will lie. Jillson v. Barton, 139 Ga. App. 767 , 229 S.E.2d 476 (1975).

Interference with the natural flow of surface water may amount to a nuisance, without the presence of the element of danger to health. City of Macon v. Cannon, 89 Ga. App. 484 , 79 S.E.2d 816 (1954).

Wholesale grocery business in a residential section of a city is not necessarily a nuisance of itself, and therefore a court of equity will not enjoin the construction of a building to be used for that purpose, where there is no zoning regulation or restrictive covenant inhibiting such use. Roberts v. Rich, 200 Ga. 497 , 37 S.E.2d 401 (1946).

Detention pond. - Judgment entered for plaintiffs on plaintiffs' nuisance claim was proper; although the developer's maintaining a detention pond was itself legal, it became a nuisance when conducted in an illegal manner to the damage of plaintiffs' land. The fact that the defendant did not own the pond that created the nuisance did not shield the defendant from liability, as the jury could have found from the defendant's ownership interest in the entity that maintained the detention pond that the defendant had sufficient control over the decision not to modify the pond so as to hold it liable for the damages caused by the pond. Sumitomo Corp. of Am. v. Deal, 256 Ga. App. 703 , 569 S.E.2d 608 (2002).

Wrongful diversion of water onto property of another. - To wrongfully turn water on the lands of another is a nuisance. Goble v. Louisville & N.R.R., 187 Ga. 243 , 200 S.E. 259 (1938).

Excess water runoff. - In two cases involving a dispute for nuisance and trespass arising out of excessive water runoff which flowed onto a landowner's land, the trial court's grant of summary judgment to a construction contractor was reversed, while the denial of summary judgment to a developer was affirmed, as: (1) the testimony as to the presence of the excess runoff and its cause, presented questions of fact for a jury; (2) merely because the county approved the development activities did not mean that either the contractor or the developer or both could not be held liable for a nuisance; and (3) the landowner's action against the alleged creators of the water-runoff was authorized, regardless of the landowner having sold the property. Green v. Eastland Homes, Inc., 284 Ga. App. 643 , 644 S.E.2d 479 (2007), cert. denied, 2007 Ga. LEXIS 629 (Ga. 2007).

Diversion of surface water. - County is subject to suit for damages, as well as injunctive relief, for maintaining a roadway in such manner as to constitute a continuing nuisance by diverting surface water onto the owner's property, and it is no defense that the property is not adjacent to the roadway in question. Reid v. Gwinnett County, 242 Ga. 88 , 249 S.E.2d 559 (1978).

Landowners' of a lakefront property created a nuisance when the owners went onto a corporation's dam and plugged the weakened dam to prevent a lake from draining. Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894 , 613 S.E.2d 673 (2005).

Although the government required the owners of a weakened dam to take certain safety precautions to maintain the level of water in a lake at a low level, the owners' refusal to repair the dam was not a justification for creating a nuisance. Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894 , 613 S.E.2d 673 (2005).

Jury properly awarded damages against a corporation and in favor of the lakefront landowners because the corporation created a nuisance by attempting to breach the dam and drain the lake, rather than repairing and maintaining a dam so the dam could impound water. Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894 , 613 S.E.2d 673 (2005).

Railroad and city alleged to have failed to maintain a culvert and drainage pipe that caused flood damage. - Appellate court erred by reversing summary judgment to a railroad and a city in the homeowners' nuisance and negligence suit as the homeowners' permanent nuisance claim was barred by the four year statute of limitations period set forth in O.C.G.A. § 9-3-30 ; and the homeowners failed to show triable issues of fact on the homeowners' continuing nuisance claim that the railroad improperly maintained the culvert and drainage pipe at issue or that the city had any duty to maintain the culvert and pipe since the homeowners failed to show that the city had taken any control over the property in question. City of Atlanta v. Kleber, 285 Ga. 413 , 677 S.E.2d 134 (2009).

Electromagnetic radiation. - In an action against a utility and power company for damages on theories of trespass and nuisance arising from electromagnetic radiation, a grant of summary judgment on the trespass claim and directed verdict on the nuisance claim were proper for policy reasons since the scientific evidence was inconclusive regarding the invasive quality of magnetic fields from power lines. Jordan v. Georgia Power Co., 219 Ga. App. 690 , 466 S.E.2d 601 (1995).

Criminal attack not result of nuisance. - Church was not liable for nuisance to an injured party who was criminally attacked adjacent to its property by a third-party as a one-time occurrence did not amount to a nuisance and was an isolated occurrence or act, despite the injured party's accusations that the assailant might have been concealed in the bushes near the abandoned church building before attacking the victim. Barnes v. St. Stephen's Missionary Baptist Church, 260 Ga. App. 765 , 580 S.E.2d 587 (2003).

General Consideration

Notice before suit not required. - Action may be maintained for damages resulting from a nuisance, without notice or request to abate the nuisance. Exley v. Southern Cotton Oil Co., 151 F. 101 (S.D. Ga. 1907).

Cited in Justices of Inferior Court v. Griffin & W. Point Plank Rd. Co., 15 Ga. 39 (1854); Ison v. Manley, 76 Ga. 804 (1886); Kavanagh v. Mobile & G.R.R., 78 Ga. 271 , 2 S.E. 636 (1887); Cannon v. Merry, 116 Ga. 291 , 42 S.E. 274 (1902); Lofton v. Collins, 117 Ga. 434 , 43 S.E. 708 (1903); Savannah, F. & W. Ry. v. Gill, 118 Ga. 737 , 45 S.E. 623 (1903); Edison v. Ramsey, 146 Ga. 767 , 92 S.E. 513 (1917); Holman v. Athens Empire Laundry Co., 149 Ga. 345 , 100 S.E. 207 , 6 A.L.R. 1564 (1919); Dean v. State, 151 Ga. 371 , 106 S.E. 792 , 40 A.L.R. 1132 (1921); Town of Rentz v. Roach, 154 Ga. 491 , 115 S.E. 94 (1922); Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934); Warren Co. v. Dickson, 185 Ga. 481 , 195 S.E. 568 (1938); Harbuck v. Richland Box Co., 204 Ga. 352 , 49 S.E.2d 883 (1948); Isley v. Little, 219 Ga. 23 , 131 S.E.2d 623 (1963); Burgess v. Johnson, 223 Ga. 427 , 156 S.E.2d 78 (1967); Miree v. United States, 526 F.2d 679 (5th Cir. 1976); Abee v. Stone Mt. Mem. Ass'n, 169 Ga. App. 167 , 312 S.E.2d 142 (1983); Jones v. State, 265 Ga. 84 , 453 S.E.2d 716 (1995); Moreland v. Cheney, 267 Ga. 469 , 479 S.E.2d 745 (1997); Thompson v. City of Fitzgerald, 248 Ga. App. 725 , 548 S.E.2d 368 (2001).

Private Nuisance

Definition. - "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. Miller v. Coleman, 213 Ga. 125 , 97 S.E.2d 313 (1957).

Mere violation of an ordinance does not create a private nuisance. Jillson v. Barton, 139 Ga. App. 767 , 229 S.E.2d 476 (1975).

Actionability of private nuisance. - Creation of a private nuisance is actionable, without regard to the question of negligence. Bonner v. Welborn, 7 Ga. 296 (1849); Exley v. Southern Cotton Oil Co., 151 F. 101 (S.D. Ga. 1907).

Public Nuisance

Extensive injuries not required. - Language in this section is not used in the sense that every person in the area must have been actually hurt or injured in order to show a public nuisance. Atlanta Processing Co. v. Brown, 227 Ga. 203 , 179 S.E.2d 752 (1971).

All members of public not injured. - Trial court correctly entered summary judgment against the mothers on their public nuisance count because the evidence did not show that all members of the public who came into contact with the river were injured and, thus, the mother's public nuisance cause of action was effectively erased. During the decades prior to the deaths, no other person had ever drowned when entering the river via the boat ramp, whether during power generation or otherwise, and the other six boys who accompanied the decedents into the water on the ramp that day were uninjured. White v. Ga. Power Co., 265 Ga. App. 664 , 595 S.E.2d 353 (2004).

Because there was no evidence that a sewer line backup injured more than a few individuals who came into contact with it, it did not constitute a public nuisance, pursuant to O.C.G.A. § 41-1-2 , and the four-year limitations period of O.C.G.A. § 9-3-30 applied to the nuisance claim brought by the property owners against a city. Davis v. City of Forsyth, 275 Ga. App. 747 , 621 S.E.2d 495 (2005).

Gaming house. - Maintenance of a gaming house or a gaming place is a public nuisance. Gullatt v. State ex rel. Collins, 169 Ga. 538 , 150 S.E. 825 (1929); Albany Theater, Inc. v. Short, 171 Ga. 57 , 154 S.E. 895 (1930).

Street-flow obstructions. - Any permanent structure in a street which materially interferes with travel thereon is a public nuisance. City of East Point v. Henry Chanin Corp., 210 Ga. 628 , 81 S.E.2d 812 (1954).

Disposal of chemicals. - Plaintiff's disposal of the plaintiff's chemicals at a specified site did not amount to creation of a public nuisance since: (1) any contamination of the property caused by the plaintiff did not affect a common right of all members of the public, such as the right to clean air or clean water, and (2) it was not shown that the rights of more than a few individuals were affected by the contamination. Briggs & Stratton Corp. v. Concrete Sales & Servs., 29 F. Supp. 2d 1372 (M.D. Ga. 1998).

Landing and steps of a church, though allegedly so negligently constructed as to be hazardous to life and limb, do not constitute a public nuisance since there is no right common to all of the public to use the steps and landing of a church of a particular denomination. Cox v. DeJarnette, 104 Ga. App. 664 , 123 S.E.2d 16 (1961).

Plate glass doors. - Maintenance and operation of plate glass doors in public civic center was not public nuisance. Zellers v. Theater of Stars, Inc., 171 Ga. App. 406 , 319 S.E.2d 553 (1984).

Barricades on a county road marking the approaches to the former site of a timber bridge spanning a railroad track did not constitute a public nuisance. Kitchen v. CSX Transp., Inc., 265 Ga. 206 , 453 S.E.2d 712 (1995).

Defective condition of private street. - In view of evidence that a property owner's private road impeded the necessary passage of a city's emergency personnel so as to significantly endanger the health and safety of those persons residing at apartment complexes adjacent to the road, the owner was improperly granted summary judgment in the city's suit seeking abatement of a public nuisance under O.C.G.A. § 41-1-2 . City of College Park v. 2600 Camp Creek, LLC, 293 Ga. App. 207 , 666 S.E.2d 607 (2008).

Repeated violations with threats of continuing violations. - Constant and repeated violations of former statutes relating to the business of buying wages or salaries, and to the small-loan business, with threats to continue the businesses, do not amount to such a public nuisance as may be abated and prevented by a suit in the name of the state. State ex rel. Boykin v. Ball Inv. Co., 191 Ga. 382 , 12 S.E.2d 574 (1940).

Indictment for public nuisance. - Public nuisance is the subject of indictment; not of action. South Carolina R.R. v. Moore & Philpot, 28 Ga. 398 , 73 Am. Dec. 778 (1859).

General Consideration

This section is a codification of the common law. Bonner v. Welborn, 7 Ga. 296 (1849); Roberts v. Georgia Ry. & Power Co., 151 Ga. 241 , 106 S.E. 258 (1921).

Section inapplicable when alienee induces original injury. - This section does not apply when the original injury was caused by the alienee, hence, no notice to abate is necessary. Southern Ry. v. Puckett, 121 Ga. 322 , 48 S.E. 968 (1904); Davis v. Beard, 202 Ga. App. 784 , 415 S.E.2d 522 (1992).

Duty required. - There must be a duty to abate a nuisance before liability for the maintenance of a continuing nuisance may attach. Bradford Square Condo. Ass'n v. Miller, 258 Ga. App. 240 , 573 S.E.2d 405 (2002).

Lessee of property was liable for damages from continuing contamination the lessee originally caused, and the fact that the lessee had vacated the premises would not remove the lessee's legal duty to abate the nuisance the lessee caused and which continued within four years of plaintiffs' action. Smith v. Branch, 226 Ga. App. 626 , 487 S.E.2d 35 (1997).

Cited in Phinizy v. City Council, 47 Ga. 266 (1872); Felker v. Calhoun, 64 Ga. 514 (1880); Williams v. Southern Ry., 140 Ga. 713 , 79 S.E. 850 (1913); Smith v. Central of Ga. Ry., 22 Ga. App. 572 , 96 S.E. 570 (1918); Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946); Martin v. Medlin, 83 Ga. App. 589 , 64 S.E.2d 73 (1951); Shaheen v. G & G Corp., 230 Ga. 646 , 198 S.E.2d 853 (1973); Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997); West v. CSX Transp., Inc., 230 Ga. App. 872 , 498 S.E.2d 67 (1998); Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677 , 689 S.E.2d 62 (2009).

Notice of Existence of Nuisance

Notice of existence or request for abatement must be given alienee. - Notice to an alienee that the alienee will be held responsible for any damages subsequently caused by the nuisance will suffice in lieu of a specific request to abate. Central R.R. v. English, 73 Ga. 366 (1884); Central of Ga. Ry. v. Americus Constr. Co., 133 Ga. 392 , 65 S.E. 855 (1909).

It is error to charge that a lessee need not receive notice when the evidence conflicted on the question of whether the lessee had increased the nuisance. Seaboard & R.R.R. v. Ambrose, 122 Ga. 47 , 49 S.E. 815 (1905).

Before a cause of action for maintenance of a nuisance arises against alienee of nuisance, there must be a notice of the existence of the nuisance, or a request to abate the nuisance, given to alienee; mere passive knowledge of the existence of the nuisance by alienee is not sufficient. Georgia Power Co. v. Fincher, 46 Ga. App. 524 , 168 S.E. 109 (1933).

While an action will lie without notice against one who erects and maintains a nuisance, notice is a prerequisite against one who merely acquires property on which there is an existing nuisance, passively permits the nuisance's continuance, and adds nothing thereto. Georgia Power Co. v. Moore, 47 Ga. App. 411 , 170 S.E. 520 (1933).

Maintenance of the nuisance after notice is continuance of the nuisance, and the alienee of the property causing the nuisance is responsible for that continuance, if there is a request for abatement before action is filed. Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727 , 426 S.E.2d 387 (1992).

Trial court correctly determined that a property owner's failure to provide ante litem notice to an apartment owner prohibited the property owner from pursuing nuisance claims because, pursuant to O.C.G.A. § 41-1-5(b) , the property owner was required to provide the apartment owner with notice of the nuisance or a request to abate prior to filing suit unless it did anything to increase the nuisance; the apartment owner acquired the property after detention ponds had been built and after storm water runoff from the property had already become problematic on the property owner's land, and the property owner presented no evidence that the apartment altered the property or took any other affirmative action to increase the nuisance. Haarhoff v. Jefferson at Perimeter L.P., 315 Ga. App. 271 , 727 S.E.2d 140 (2012).

Damages prior to notice cannot be recovered. City Council v. Marks, 124 Ga. 365 , 52 S.E. 539 (1905); Roberts v. Georgia Ry. & Power Co., 151 Ga. 241 , 106 S.E. 258 (1921).

Any damages accruing prior to notice are not recoverable. - Macko v. City of Lawrenceville, 231 Ga. App. 671 , 499 S.E.2d 707 (1998), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146 , 661 S.E.2d 195 (2008).

Notice of abatement when alienee increases nuisance. - Grantee or alienee of property causing a nuisance is not liable for damages caused by its continued maintenance and accruing prior to a notice or request to abate; but it is also the rule that when the alienee of property on which is situated a nuisance does anything to increase the nuisance, the alienee may be sued without notice to abate. Savannah Elec. & Power Co. v. Horton, 44 Ga. App. 578 , 162 S.E. 299 (1932).

While notice is required to one who merely purchases land and fails to remove a nuisance created by another, yet it is not necessary to an alienee, who knowingly does some additional act to actively maintain and use a nuisance originally created by another, or does something to increase the existing nuisance or its injurious effects, and thus creates in effect a fresh nuisance. Georgia Power Co. v. Moore, 47 Ga. App. 411 , 170 S.E. 520 (1933).

Notice not sufficient. - Letters to homeowners were legally insufficient to give the required notice to abate a nuisance caused by the allegedly undersized drainage pipes; letter stated city blamed homeowners for not maintaining pipes and that if further litigation was necessary the homeowners could be named as parties. Macko v. City of Lawrenceville, 231 Ga. App. 671 , 499 S.E.2d 707 (1998), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146 , 661 S.E.2d 195 (2008).

No duty to move away. - When a person rents land which is adjacent to a nuisance, one is under no duty to move away. Central R.R. v. English, 73 Ga. 366 (1884).

Jury instruction on imputed notice of nuisance. - Upon the trial of a suit against alienee of a nuisance to recover damages for maintenance of the nuisance, which arises out of the construction of the dam which alienee's predecessor in title had erected, and which alienee had not altered, it was error for the court to instruct jury that, if the agent of the defendant in charge of the dam as superintendent is the same person who had held the same position with the defendant's predecessor in title, and who, as superintendent for latter, had notice of the existence of the nuisance, knowledge by one of this fact constituted notice to the defendant of the existence of the nuisance. Georgia Power Co. v. Fincher, 46 Ga. App. 524 , 168 S.E. 109 (1933).

Property purchased with knowledge of nuisance. - Purchaser of property upon which there is an existing nuisance is not barred from the purchaser's right to recover damages resulting from a continuation of the nuisance by the defendant, after requesting the defendant to abate the nuisance, by the fact that the purchaser purchased the property with knowledge of the nuisance. Roughton v. Thiele Kaolin Co., 209 Ga. 577 , 74 S.E.2d 844 (1953).

Owner or lessee of land although taking with knowledge of a nuisance, has a right to presume that, being illegal, the nuisance will be abated; and, if it is not, one may sue for damages resulting to the owner or lessee therefrom. Ingram v. City of Acworth, 90 Ga. App. 719 , 84 S.E.2d 99 (1954).

Measure of damages. Mayor of Gainesville v. Robertson, 25 Ga. App. 632 , 103 S.E. 853 (1920).

Notice to the alienee cannot be set up by an amendment. Blackstock v. Southern Ry., 120 Ga. 414 , 47 S.E. 902 (1904).

Variance between allegations and proof. - Allegations that damage was caused by the erection of a nuisance by the defendant are not supported by evidence that it was erected by the predecessor in title. Southern Ry. v. Cook, 106 Ga. 450 , 32 S.E. 585 (1899); DeLoach v. Georgia C. & P.R.R., 137 Ga. 633 , 73 S.E. 1072 (1912).

General Consideration

Constitutionality. - Statutory definition of a nuisance is not vague and indefinite and therefore unconstitutional. Atlanta Processing Co. v. Brown, 227 Ga. 203 , 179 S.E.2d 752 (1971).

Section defines an indictable nuisance, and was evidently intended not to authorize the abatement of an act which was not indictable, but to authorize the abatement of indictable nuisances of peculiar virulence, without waiting for an indictment. Vason v. South Carolina R.R., 42 Ga. 631 (1871).

Section applicable to public and private nuisance. - While this section, in terms, provides only for the abatement of a public nuisance, in the manner therein specified, it has been several times held that a private nuisance may be abated under its operation provided the application is made by the party injured. Ruff v. Phillips, 50 Ga. 130 (1873); Salter v. Taylor, 55 Ga. 310 (1875); Hart v. Taylor, 61 Ga. 156 (1878); Holmes v. Jones, 80 Ga. 659 , 7 S.E. 168 (1888); Savannah, F. & W. Ry. v. Gill, 118 Ga. 737 , 45 S.E. 623 (1903).

Equitable relief. - If the nuisance is continuing in character, the remedy is inadequate, and equity will take jurisdiction and grant relief. Hunnicutt v. Eaton, 184 Ga. 485 , 191 S.E. 919 (1937).

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).

Operation of lawful business as a nuisance. - 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).

Cited in South Carolina R.R. v. Ells, 40 Ga. 87 (1869); Wetter v. Campbell, 60 Ga. 266 (1878); Roberts v. Harrison, 101 Ga. 773 , 28 S.E. 995 , 65 Am. St. R. 342 (1897); Western & A.R.R. v. City of Atlanta, 113 Ga. 537 , 38 S.E. 996 , 54 L.R.A. 294 (1901); Cole v. Jones, 8 Ga. App. 737 , 70 S.E. 96 (1911); Adair v. Spellman Sem., 13 Ga. App. 600 , 79 S.E. 589 (1913); Giles v. Rawlings, 148 Ga. 575 , 97 S.E. 521 (1918); Jones v. City of Atlanta, 40 Ga. App. 300 , 149 S.E. 305 (1929); De Long v. Kent, 85 Ga. App. 360 , 69 S.E.2d 649 (1952); Hagins v. Howell, 219 Ga. 276 , 133 S.E.2d 8 (1963); Sizemore v. Coker, 220 Ga. 773 , 141 S.E.2d 891 (1965).

Sufficiency of Allegations

No presumption of damages. - While petitioners were not entitled to all the relief prayed for, or to an injunction against the operation of the defendant's service station business when conducted in a normal manner accompanied by no more noises than were reasonably necessary, yet the petitioners would be entitled to injunctive relief against unusual and unnecessary noises, provided the proof showed that the operation of the business was attended with such unusual and unnecessary noises, as distinguished from those disturbances and noises which were normal and of the character usually attendant upon the operation of the business of operating a filling station and garage for repairs. Wilson v. Evans Hotel Co., 188 Ga. 498 , 4 S.E.2d 155 (1939).

Nuisance being an indirect tort, there is no presumption of damages from its maintenance; and the plaintiff, in order to recover must show the fact of the nuisance and consequent damages. Crane v. Mays, 70 Ga. App. 66 , 27 S.E.2d 347 (1943).

Petition alleging that the plaintiff purchased a described tract of land, and at the same time acquired an easement adjacent thereto over a lane as a means of ingress and egress from the public road to the plaintiff's farm, that the plaintiff had used this land without interruption since the date the land was acquired until the defendant obstructed the land by placing a "cattle gap" across the land, that such obstruction had interfered with the plaintiff's movement of cattle along that lane to a pasture, thereby causing the plaintiff much inconvenience, trouble, and injury to the plaintiff's cattle, and thereby depriving the plaintiff's family of necessary milk and food, stated a cause of action for injunctive relief. Ozbolt v. Miller, 206 Ga. 558 , 57 S.E.2d 601 (1950).

Character of proceeding under this chapter was established by the plaintiff's petition and the petition's contents, and this could not be changed into an action to try title to land by the defense sought to be interposed by the defendant. Barnes v. Cheek, 84 Ga. App. 653 , 67 S.E.2d 145 (1951).

General Consideration

Actions by private citizens require special injury. - Private citizen specially damaged by a public nuisance may proceed in the citizen's own name and behalf to have the nuisance abated under former Civil Code 1895, §§ 4761 and 4766 (see now O.C.G.A. §§ 41-2-2 and 41-2-3 ). Savannah, F. & W. Ry. v. Gill, 118 Ga. 737 , 45 S.E. 623 (1903); Trust Co. v. Ray, 125 Ga. 485 , 54 S.E. 145 (1906).

Private citizens cannot generally interfere to have a public nuisance enjoined. Sammons v. Sturgis, 145 Ga. 663 , 89 S.E. 774 (1916).

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).

If operation of a picture show on the Sabbath amounts to a public nuisance, such nuisance may be abated in the manner provided by law, or the nuisance may be enjoined upon an information filed by the solicitor general (now district attorney), but an injunction will not be granted at the instance of a private citizen unless one has sustained special injury. American Legion v. Miller, 183 Ga. 754 , 189 S.E. 837 (1937); Crane v. Mays, 70 Ga. App. 66 , 27 S.E.2d 347 (1943).

All injury to health is special, and necessarily limited in its effect to the individual affected, and is, in its nature, irreparable. It matters not that others within the sphere of the operation of the nuisance, whether public or private, may be affected likewise. Hunnicutt v. Eaton, 184 Ga. 485 , 191 S.E. 919 (1937).

While generally a private citizen may not have a public nuisance enjoined, such nuisance may be abated on the application of a citizen specially injured. Harbuck v. Richland Box Co., 204 Ga. 352 , 49 S.E.2d 883 (1948).

Allegations of petition in which petitioners sought equitable relief "as individuals, citizens, and taxpayers" from the closing of a railroad crossing were insufficient to show special damage to petitioners, or any damage not shared equally by all other "individuals, citizens, and taxpayers," and the petition was therefore insufficient for the grant of any relief to the petitioners as individuals, citizens, and taxpayers. State Hwy. Dep't v. Reed, 211 Ga. 197 , 84 S.E.2d 561 (1954).

Cited in Coast Line R.R. v. Cohen, 50 Ga. 451 (1873); Ison v. Manley, 76 Ga. 804 (1886); Western & A.R.R. v. City of Atlanta, 113 Ga. 537 , 38 S.E. 996 , 54 L.R.A. 294 (1901); Peginis v. City of Atlanta, 132 Ga. 302 , 63 S.E. 857 , 35 L.R.A. (n.s.) 716 (1909); Aiken v. Armistead, 186 Ga. 368 , 198 S.E. 237 (1938); Poole v. Arnold, 187 Ga. 734 , 2 S.E.2d 83 (1939); Nichols v. Pirkle, 202 Ga. 372 , 43 S.E.2d 306 (1947); Kilgore v. Paschall, 202 Ga. 416 , 43 S.E.2d 520 (1947); De Long v. Kent, 85 Ga. App. 360 , 69 S.E.2d 649 (1952); Malcom v. Webb, 211 Ga. 449 , 86 S.E.2d 489 (1955); City of Dublin v. Hobbs, 218 Ga. 108 , 126 S.E.2d 655 (1962); Burgess v. Johnson, 223 Ga. 427 , 156 S.E.2d 78 (1967); Ungar v. Mayor of Savannah, 224 Ga. 613 , 163 S.E.2d 814 (1968); J.D. Jewell, Inc. v. State ex rel. Hancock, 227 Ga. 336 , 180 S.E.2d 704 (1971); Sanders v. McAuliffe, 364 F. Supp. 654 (N.D. Ga. 1973); Brock v. Hall County, 239 Ga. 160 , 236 S.E.2d 90 (1977); Stephens v. Tate, 147 Ga. App. 366 , 249 S.E.2d 92 (1978); Brand v. Wilson, 252 Ga. 416 , 314 S.E.2d 192 (1984); Upper Chattahoochee Riverkeeper Fund, Inc. v. City of Atlanta, 986 F. Supp. 1406 (N.D. Ga. 1997).

Authority of District Attorney

Acting on information of citizens. - Lewd house being per se a public nuisance, a court of equity has jurisdiction to abate the nuisance on a suit brought by the district attorney on the information of a citizen as a relator, without alleging or proving special injury to property. Edison v. Ramsey, 146 Ga. 767 , 92 S.E. 513 (1917).

District attorney is not authorized to act on the information of citizens, except in case of a public nuisance. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817 , 16 S.E.2d 753 (1941).

In order for a solicitor general (now district attorney) to proceed for the public, on information filed with the solicitor by citizens, to enjoin a nuisance, the object which it is sought to enjoin must be a public nuisance. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817 , 16 S.E.2d 753 (1941).

Complaint must name citizen furnishing information. - Court of equity will not entertain a bill in the name of one or more private citizens to restrain a public nuisance, no private injury or threatened injury being alleged to such citizens or to their property. In such a case, the nuisance being a purely public one, can only be restrained by the public, on information filed by a public officer, to wit: by the solicitor general (now district attorney) for the Circuit. This holding is declaratory of the common-law rule which is universally adopted and quite uniform. Mayor of Columbus v. Jaques, 30 Ga. 506 (1860).

Complaint in equity filed by the district attorney to abate a public nuisance must name the citizen or citizens upon whose information the complaint is based. Chancey v. Hancock, 233 Ga. 734 , 213 S.E.2d 633 (1975).

Authority not repealed by Air Quality Control Act. - Authority granted to district attorneys to abate public nuisances relating to air pollution was not repealed to any extent by the former Georgia Air Quality Control Act. J.D. Jewell, Inc. v. Hancock, 226 Ga. 480 , 175 S.E.2d 847 (1970).

Jurisdiction

Jurisdiction by court of equity to grant injunction. - Court of equity has jurisdiction, and in a proper case may by injunction restrain a public nuisance upon information filed by the solicitor general (now district attorney). Gullatt v. State ex rel. Collins, 169 Ga. 538 , 150 S.E. 825 (1929).

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).

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).

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).

General Consideration

Cited in Lockwood v. Daniel, 193 Ga. 122 , 17 S.E.2d 542 (1941); De Long v. Kent, 85 Ga. App. 360 , 69 S.E.2d 649 (1952); Clark v. Baety, 216 Ga. 42 , 114 S.E.2d 527 (1960).

Statute of Limitations

Statute of limitations not a bar to equitable relief. - Plaintiff's right to equitable relief was not barred by the statute of limitations on grounds that the nuisance complained of had existed for a period of more than four years prior to the institution of litigation, since when there is a continuing nuisance, a new cause of action arises daily and a court of equity takes jurisdiction in such a case to avoid a multiplicity of suits. Scott v. Dudley, 214 Ga. 565 , 105 S.E.2d 752 (1958).

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 and 41-2-4 ) was sufficiently specific. Morris Fertilizer Co. v. Boykin, 149 Ga. 673 , 101 S.E. 799 (1920).

General Consideration

It is an exercise of judicial power, to determine what is by law a nuisance and only those things which are by the common or statute law declared to be nuisances per se, or which in their very nature are such, may be summarily suppressed. City of Atlanta v. Aycock, 205 Ga. 441 , 53 S.E.2d 744 (1949).

Mere apprehension of injury. - Nuisance law does not apply if there is a mere apprehension of an irreparable injury. Wingate v. City of Doerun, 177 Ga. 373 , 170 S.E. 226 (1933).

Any nuisance injurious to the public health is within the terms of this section. Strong v. LaGrange Mills, 112 Ga. 117 , 37 S.E. 117 (1900); Western & A.R.R. v. City of Atlanta, 113 Ga. 537 , 38 S.E. 996 , 54 L.R.A. 294 (1901); Peginis v. City of Atlanta, 132 Ga. 302 , 63 S.E. 857 , 35 L.R.A. (n.s.) 716 (1909); Griggs v. City of Macon, 154 Ga. 519 , 114 S.E. 899 (1922).

Proceedings in name of city upon application of citizen. - If the nuisance is a public one merely, and no private individual suffered special damages therefrom, then the proceedings to abate the nuisance should be in the name of the city upon the application of some citizen. Calhoun ex rel. Chapman v. Gulf Oil Corp., 189 Ga. 414 , 5 S.E.2d 902 (1939).

Cited in Spencer v. Tumlin, 155 Ga. 341 , 116 S.E. 600 (1923); City Council v. Sanders, 164 Ga. 235 , 138 S.E. 234 (1927); Jones v. City of Atlanta, 40 Ga. App. 300 , 149 S.E. 305 (1929); Albany Theater, Inc. v. Short, 171 Ga. 57 , 154 S.E. 895 (1930); O'Quinn v. Mayor of Homerville, 42 Ga. App. 628 , 157 S.E. 109 (1931); American Legion v. Miller, 183 Ga. 754 , 189 S.E. 837 (1937); Lockwood v. Daniel, 193 Ga. 122 , 17 S.E.2d 542 (1941); Foster v. Mayor of Carrollton, 68 Ga. App. 796 , 24 S.E.2d 143 (1943); De Long v. Kent, 85 Ga. App. 360 , 69 S.E.2d 649 (1952); Johnson v. Willingham, 212 Ga. 310 , 92 S.E.2d 1 (1956); Neel v. Clark, 221 Ga. 439 , 145 S.E.2d 235 (1965); Cronic v. State, 222 Ga. 623 , 151 S.E.2d 448 (1966); Shaffer v. City of Atlanta, 223 Ga. 249 , 154 S.E.2d 241 (1967); Fulton County v. Woodside, 223 Ga. 316 , 155 S.E.2d 404 (1967); Ford v. Crawford, 240 Ga. 612 , 241 S.E.2d 829 (1978); Yield, Inc. v. City of Atlanta, 152 Ga. App. 171 , 262 S.E.2d 481 (1979); 660 Lindbergh, Inc. v. City of Atlanta, 492 F. Supp. 511 (N.D. Ga. 1980).

Notice

Building inspector not authorized to substitute the inspector's judgment. - Under the general law of this state and this section, the building inspector of the City of Atlanta was not authorized to substitute the inspector's judgment for that of the tribunal fixed by law, and serve notices on the property owners that the owners' property "constitutes a nuisance," or that the property had been "condemned." City of Atlanta v. Aycock, 205 Ga. 441 , 53 S.E.2d 744 (1949).

Reasonable notice of hearing on abatement. - Reasonable notice to the property owner of the time and place of hearing must precede any judgment ordering the abatement (destruction) of private property as a nuisance. City of Atlanta v. Aycock, 205 Ga. 441 , 53 S.E.2d 744 (1949).

Delegation of Power to Abate Nuisances

Lawful delegation of police power to abate nuisances. - City's agreement to cooperate with the city's local housing authority in effecting elimination of unsafe or insanitary dwellings with the approval of the United States Public Housing Administration does not contemplate or provide for an unlawful delegation of the city's police power to abate nuisances to the public housing administration but amounts only to an assurance of a proper exercise of the power by the city to the end that it will do what it ought in any event to do, namely, eliminate unsafe or unsanitary dwellings in the interest of general welfare, as it alone can lawfully do. Telford v. City of Gainesville, 208 Ga. 56 , 65 S.E.2d 246 (1951).

Jurisdiction

Jurisdiction generally. - This section gives no power to justices of the peace (now magistrates); power is vested in the city government alone. South Carolina R.R. v. Ells, 40 Ga. 87 (1869).

Part of the section (formerly) relating to jurisdiction in cities of twenty thousand inhabitants confers such jurisdiction in the police court alone of the city where the nuisance exists, except in cases of nuisance per se. Western & A.R.R. v. City of Atlanta, 113 Ga. 537 , 38 S.E. 996 , 54 L.R.A. 294 (1901); Peginis v. City of Atlanta, 132 Ga. 302 , 63 S.E. 857 , 35 L.R.A. (n.s.) 716 (1909).

Filing abatement proceedings with municipal authorities. - Proceedings to abate a nuisance, public or private, alleged to exist within an incorporated municipality, must be filed with and determined by the municipal authorities, unless there are special circumstances, requiring the intervention of equity. Waller v. Lanier, 198 Ga. 64 , 30 S.E.2d 925 (1944); Mitchell v. Green, 201 Ga. 256 , 39 S.E.2d 696 (1946).

Section provides adequate remedy. - To abate a nuisance, public or private, the remedy provided in this section should be resorted to, unless the special facts make the remedy inadequate. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

This section provides an adequate remedy for the abatement of a nuisance, public or private, which has been created and which exists within the limits of a town or city, and that remedy must be resorted to for its abatement, unless there are special facts which make the remedy inadequate. City of East Point v. Henry Chanin Corp., 210 Ga. 628 , 81 S.E.2d 812 (1954).

Plaintiff must apply to city recorder for order abating nuisance. - When the city responsible for an alleged nuisance (formerly) had a population of more than 20,000, the plaintiff was required to apply to the city's recorder for an order abating the nuisance complained of. City of East Point v. Henry Chanin Corp., 210 Ga. 628 , 81 S.E.2d 812 (1954).

Review of recorder's decision by certiorari in superior court. - Any decision rendered by city's recorder had to be reviewed by certiorari in the superior court. City of East Point v. Henry Chanin Corp., 210 Ga. 628 , 81 S.E.2d 812 (1954).

Writ of prohibition properly denied. - When the City of Atlanta brought a proceeding in the recorder's court to abate a nuisance, the penal features of the proceeding being abandoned, and the defendant sued out in the superior court a petition for the writ of prohibition to prevent the recorder from proceeding with the case, the writ was properly denied, the writ of prohibition is never granted when there is any other legal remedy, and this section provided an adequate and complete remedy in the case. Magbee v. City of Atlanta, 180 Ga. 733 , 180 S.E. 485 (1935).

Availability of certiorari. - Decision by the governing body of a municipality as to whether alleged acts constitute a nuisance, made after trial in which the parties at interest have participated, is a judicial determination from which certiorari will lie. Attaway v. Coleman, 213 Ga. 329 , 99 S.E.2d 154 (1957).

City criminal court empowered to abate continuing nuisance. - Fact that the General Assembly made the continuation of a nuisance after notice to abate a misdemeanor (O.C.G.A. § 41-1-6 ), does not preclude the criminal court of Cordele's power to abate nuisances pursuant to the legislative authorization in O.C.G.A. § 41-2-5 , and the court's power to enforce the court's judgments by contempt pursuant to the legislative authorization in the city charter. Horne v. City of Cordele, 254 Ga. 346 , 329 S.E.2d 134 (1985).

Proceedings not criminal in nature. - Proceeding in municipal court to determine the question of whether a nuisance existed was not criminal or quasi criminal in nature since the court cannot fine or imprison the defendant in error, and the bond required for certiorari is that provided for in former Code 1933, §§ 19-206, 19-207, and 19-208 (see now O.C.G.A. § 5-4-5 ) for civil proceedings, and a bond under former Code 1933, §§ 19-214 and 19-215 (see now O.C.G.A. § 5-4-20 ) would not suffice. City of Atlanta v. Pazol, 95 Ga. App. 598 , 98 S.E.2d 216 (1957).

Equitable jurisdiction. - Equity will take jurisdiction when the majority of council are disqualified. Hill v. McBurney Oil & Fertilizer Co., 112 Ga. 788 , 38 S.E. 42 , 52 L.R.A. 398 (1901).

When a municipal corporation itself is maintaining a nuisance, and a proper case exists for the nuisance's abatement, equity will take jurisdiction, notwithstanding the provisions of this section, which prescribe the manner of abatement when the nuisance complained of shall exist in an incorporated town or city. City of Blue Ridge v. Kiker, 189 Ga. 717 , 7 S.E.2d 237 (1940).

Although a nuisance exists in a city under the government of a mayor or common council, a court of equity will in a proper case take jurisdiction of a suit to enjoin continuance of the nuisance, notwithstanding the provisions of this section, when the nuisance is a continuing one. State ex rel. Boykin v. Ball Inv. Co., 191 Ga. 382 , 12 S.E.2d 574 (1940); Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

When there is a continuing nuisance, which plaintiffs allege will cause sickness, the remedy provided under this section does not furnish an ample and complete remedy for the plaintiffs. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

If alleged conduct constituted a continuing nuisance under former Code 1933, § 72-101 (see now O.C.G.A. § 41-1-1 ), the plaintiff was entitled to equitable relief. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Petition alleging that a nuisance was a continuing one and injuriously affected the comfort and health of the petitioners in described particulars, and alleging that unless enjoined would cause irreparable damage to petitioners and result in a multiplicity of suits, was not subject to the ground of demurrer that it showed on its face that the petitioners had an adequate remedy at law. Poultryland, Inc. v. Anderson, 200 Ga. 549 , 37 S.E.2d 785 (1946).

Since a continuing nuisance was alleged, and since a continuing nuisance may be enjoined by a court of equity it was not error for the trial court to overrule the plea to the jurisdiction, wherein it was asserted that, by virtue of this section the mayor and city council of Springfield had jurisdiction to abate a nuisance in the form of a previously erected obstruction to a private way within the corporate limits of a city of less than 20,000 population. Rahn v. Pittman, 216 Ga. 523 , 118 S.E.2d 85 (1961).

In situations where there is a continuing nuisance, this section does not afford an adequate remedy at law and a court of equity will entertain jurisdiction to enjoin the nuisance and have the nuisance abated. City of Atlanta v. Wolcott, 240 Ga. 244 , 240 S.E.2d 83 (1977).

No conversion to equitable proceeding by use of evidentiary standard. - When a party elected to proceed under former Code 1933, 72-401 (see now O.C.G.A. § 41-2-5 ), it was an action at law and using the evidentiary standard contained in former Code 1933, 72-301 (see now O.C.G.A. § 41-3-1 ) did not convert the proceeding into an equitable one. Yield, Inc. v. City of Atlanta, 145 Ga. App. 172 , 244 S.E.2d 32 , cert. dismissed, 241 Ga. 593 , 247 S.E.2d 764 (1978).

Pleading and Practice

It is an action at law where a party elects to proceed under this section. Yield, Inc. v. City of Atlanta, 239 Ga. 578 , 238 S.E.2d 351 (1977).

Certiorari and not prohibition is the remedy by which officers should be forced to follow this section. Mayor of Montezuma v. Minor, 70 Ga. 191 (1883).

Failure to include the municipality as a party is not ground for dismissal. See Trust Co. v. Ray, 125 Ga. 485 , 54 S.E. 145 (1906).

This section does not confer authority to impose a fine. Healey v. City of Atlanta, 125 Ga. 736 , 54 S.E. 749 (1906).