Roberts v. Rich , 200 Ga. 497 ( 1946 )

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

2. 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. Code, § 72-204; Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472 (4) (67 S.E. 1126); Thomoson v. Sammon, 174 Ga. 751 (3) (164 S.E. 45).

3. A wholesale grocery business in a residential section of a city is not necessarily a nuisance within 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. Standard Oil Co. v. Kahn, 165 Ga. 575 (1) (141 S.E. 643); Barton v. Rogers, 166 Ga. 802 (3) (144 S.E. 248); Thomoson v. Sammon, 174 Ga. 751 (4) (supra); Wingate v. Doerun, 177 Ga. 373 (4) (170 S.E. 226); Enzor v. Askew, 191 Ga. 576 (13 S.E.2d 374).

(a) If the building when completed should be operated in such a manner as to cause a nuisance, parties aggrieved may then apply to a court of equity and enjoin its operation in such manner. Pig'n Whistle Sandwich Shops Inc. v. Keith, 167 Ga. 735 (3) (146 S.E. 455); Pittard v. Summerour, 181 Ga. 349 (182 S.E. 20); Asphalt Products Co. v. Beard, 189 Ga. 610 (7 S.E.2d 172).

4. Under the preceding rulings, the petition did not state a cause of action, and it was not error to dismiss the same on general demurrer. Rushing v. Thigpen, 200 Ga. 313 (37 S.E.2d 180).

(a) In this view, it is unnecessary to determine any question as to validity of the alleged permit purporting to authorize the construction and use of such building as a wholesale grocery warehouse, since the result would be the same, regardless of the validity or invalidity of such a permit.

Judgment affirmed on the main bill of exceptions. All the Justices concur, except Wyatt, Justice, dissenting, and Cross-bill dismissed. All the Justicesconcur.

Nos. 15386, 15387. FEBRUARY 21, 1946. REHEARING DENIED MARCH 5, 1946. Mrs. Martha O. Roberts and others, owners of homes in a residential section of the City of Marietta, filed a suit in equity in the Superior Court of Cobb County, against the City of Marietta and the Marietta Planning Commission, as residents of that county, and against five named individuals, residents of Fulton County, to wit, Meyer Rich, Mrs. Nessie G. Rich, Sidney Rich, and Sol D. Morgan, owners of a corner lot, situated near the plaintiffs' residences, upon which they were about to construct a wholesale grocery warehouse, and against A. R. Abrams, their contractor and agent. This lot is situated at the southwest corner of Goss and Atlanta Streets, while the residence lot owned jointly by two of the plaintiffs is also situated on Atlanta Street, immediately south of and adjacent to such corner lot of the defendants. The other two residences are situated on the opposite side of Atlanta Street in front of it.

The petition complained that the proposed warehouse and wholesale grocery business in such residential section would constitute a nuisance, causing irreparable damage to the plaintiffs, and sought an injunction to restrain the construction of the proposed building.

It was further alleged that the defendant Planning Commission had by a purported resolution zoned the said corner lot for such business purpose, and that a building permit had been issued to the named owners, to construct a wholesale warehouse thereon.

The plaintiffs made in substance the following allegations: The land on which the plaintiffs' dwellings are situated, will be rendered practically without value, since there are no other businesses around said property. The sight of said proposed wholesale grocery business on a purely residential street, with automobiles and other vehicles constantly loading and unloading, will be an eyesore to the plaintiffs and their families, and will reduce the present value and desirability of their property. The conduct of such business at such location will also create traffic hazards and render the neighborhood unsafe for the plaintiffs' children. There is a public school in the vicinity, and Atlanta Street is the main thoroughfare for children who attend such school. By reason of the increased traffic, the children will be confused and subject to injury when crossing the streets on their way to and from school. Said business would create a home and hatching place for vermin, rats, mice, roaches, flies, and other rodents and insects of like nature, which always follow a business of this nature, and the entire neighborhood, including the properties belonging to the plaintiffs, will become permeated and overrun with such rodents and insects, spreading diseases and annoying the plaintiffs and their families. It is common knowledge that wholesale grocers deal in vegetables and perishable items, and common experience has taught that there will be spoilage of such vegetables and perishables, and that such items in spoiling will cast off a violent, pungent, and disagreeable odor which will be offensive to the plaintiffs and will force them to remain in their houses with windows and doors shut, and will cause them to forfeit the pleasure and right of sitting on their porch or lawn and deprive them of the right of full enjoyment and use of their property, and that the odor and fumes will be offensive to all who pass along the street.

It was alleged that the Marietta Planning Commission was created by an act of the General Assembly approved February 13, 1943 (Ga. L. 1943, p. 1435); that in pursuance of this act, the mayor and council had passed an ordinance providing for the organization of such commission and for the zoning of property by it; and that the commission had thereupon zoned this lot for the business purpose stated; copies of the ordinance and of the minutes of the commission, showing such act of zoning, being attached to the petition as exhibits. The petition assailed both the statute and the ordinance as being unconstitutional upon several grounds. For these and additional reasons, the lawful existence of the planning commission itself was challenged, and the act or resolution of the commission zoning the property in question, and the building permit issued in pursuance thereof, were alleged to be null and void.

The prayers were substantially as follows: That the defendants be restrained and enjoined immediately from the erection of the said proposed building, and that on the final hearing the defendants be permanently enjoined; that the act of the legislature be declared null, void, and unconstitutional; that the resolution, act, and decision of the Marietta Planning Commission be declared null, void, and unconstitutional; that the permit issued to the defendants for the construction of the proposed building, based upon the void, illegal, and unconstitutional act and ordinance, be declared null and void, and the same be cancelled; that equity do that which is meet, just, and proper between the parties; and for process.

The residents of Fulton County demurred to the petition upon the specific ground that it did not seek any substantial relief against either of the two residents of Cobb County, namely, the City of Marietta and the Marietta Planning Commission, and therefore the court had no jurisdiction over the demurrants. The judge overruled this ground of demurrer.

All the defendants demurred to the petition generally on the ground that it did not state a cause of action. The judge sustained this ground and dismissed the petition. The plaintiffs excepted to this ruling in a main bill of exceptions. The Fulton County defendants sued out a cross-bill of exceptions, complaining that it was error to overrule the ground of their demurrer relating to jurisdiction.