Gatewood v. Hansford , 75 Ga. App. 567 ( 1947 )

The petition for damages for the maintenance and operation of a nuisance stated a cause of action and the general demurrer thereto was properly overruled.

DECIDED SEPTEMBER 3, 1947. William R. Hansford sued A. D. Gatewood III, A. D. Gatewood Jr., and Erskin Carter II, doing business as Premier Dry Cleaners for damages for the maintenance and operation of an alleged nuisance. The plaintiff's petition stated in substance; that he was the owner and in possession of a certain described dwelling house in the City of Americus, occupied by himself and his wife as a home; that the defendants occupy and use a building adjacent to the home of the plaintiff in which they operate a dry-cleaning establishment; that in connection therewith they maintain a steam boiler and smokestack in the rear thereof, and within about 60 feet of the said dwelling house of the plaintiff; that there are no intervening obstructions between the said dwelling and the dry-cleaning plant and the said smokestack; that wind currents prevailing over and near the said dwelling are such that smoke and soot from the defendant's smokestack are almost constantly being blown in the direction of plaintiff's home; that the defendants cause the smokestack to belch forth volumes of dense black smoke and soot which is continuously being blown into the residence of the plaintiff; "10. That the steam boiler attached to said dry-cleaning establishment has certain pipes connected thereto and the defendants cause these pipes to discharge about twice each and every day with a startling, terrifying, and nerve-racking roar. This discharge of steam blows a profusion of ashes, dirt, and trash into the air; simultaneously soot pours from said smokestack in great quantities and this filthy and unhealthy conglomeration rains down upon the house and premises of the plaintiff. 11. That the flue is blown at defendants' dry-cleaning plant once or twice a day, an operation whereby the defendants cause the soot to be blown out of said smokestack, and the same having no screen or other contrivance attached to the top, said soot billows forth in great waves and is deposited in large quantities upon the house and premises of the plaintiff."

The petition alleged further: that the plaintiff was in ill health; that his only income was derived from subrenting part of his house; that the startling and loud noise created by the discharge of the steam pipes of the defendants' plant had caused the plaintiff to become extremely nervous; that his home would be uninhabitable if steps were not taken to keep out the smoke, soot, ashes and trash blown into the air by the defendants' plant, and that it is necessary for the plaintiff to keep the windows and doors of his home tightly closed in summer and winter with the consequent loss of fresh air so essential to his health; that as a result of these conditions the plaintiff feels despondent and depressed; that the smoke makes his eyes constantly burn and hurt; that his tenants are constantly beseeching the plaintiff for relief from the nuisance created by the defendants' establishment, and are constantly threatening to move unless something is done about it, and this keeps the plaintiff constantly upset, and adds greatly to his worry and nervousness; that the plaintiff's health has steadily grown worse over the past year as a result of these conditions, and that by reason of this detriment to his health the plaintiff has been damaged in the sum of $2000; that the conditions thus created by the defendants' plant have denied the plaintiff the free use of his front and back porches and yards, and have damaged him to the extent of $180 per year; that the outside of his house has been rendered in need of cleaning and painting to his damage in the sum of $150; and that the interior of his house has been damaged to the extent of $100 by the settling on the floors, doors, wood-work, and walls of the soot and dirt thrown out by defendants' plant.

The plaintiff further alleged that the nuisance thus created was abatable, and that although the defendants had been notified of it, they had refused to take steps to abate it, and the plaintiff asked additional damages of $500 "for the wanton and wilful misconduct of the defendants in maintaining this nuisance, and to deter them from continuing the same, and as compensation for his wounded feelings." The defendants demurred generally to the petition on the ground that no cause of action was set out, and upon a hearing the demurrer was overruled. The exception here is to that ruling. "A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man." Code, § 72-101. "Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals." § 72-102. "A private nuisance may injure either the person or property, or both, and in either case a right of action accrues to the person injured or damaged." § 72-104. It has been held that a nuisance at law or 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) Standard Oil Co. v. Kahn, 165 Ga. 575, 576 (141 S.E. 643) Thomoson v. Sammon, 174 Ga. 751, 757 (164 S.E. 45);Washington Seminary v. Bass, 192 Ga. 808, 816 (16 S.E.2d 565) Poultryland Inc. v. Anderson, 200 Ga. 549, 555 (37 S.E.2d 785) It is well settled in Georgia that a steam laundry is not a nuisance per se, and "smoke is not per se a nuisance."Holman v. Athens Empire Laundry Co., 149 Ga. 345 (4) (100 S.E. 207, 6 A.L.R. 1564).

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. Poultryland Inc. v. Anderson, supra;Asphalt Products Co. v. Marable, 65 Ga. App. 877, 879 (16 S.E.2d, 771): Sam Finley Inc. v. Russell, 75 Ga. App. 112 (1a) (42 S.E.2d 452). In this connection, it has been held that 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.Asphalt Products Co. v. Marable, supra; Ponder v. QuitmanGinnery, 122 Ga. 29 (3) (49 S.E. 746); Poultryland Inc. v.Anderson, supra, p. 556. In the Holman case (149 Ga. p. 351), Judge George said: "With respect to dwelling-houses, the rule is stated in Wood on Nuisances (3rd ed.), § 505, as follows: ``The rule is that the comfortable enjoyment of the premises must besensibly 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.'" In the Ponder case, supra, it was held that a business operated so as to discharge lint and dust into the air in great quantities which was blown into the dwelling-house of a neighboring proprietor to his great discomfort and injury was an invasion of his property rights for which an action for damages would lie. And again, in the Marable case (65 Ga. App. 877), it was said, citing Coker v. Birge, 9 Ga. 425, 429, with approval, that though the act or thing be lawful, if, by reason of its location in a particular place it damages the property of another it is a nuisance. "The petition containing allegations that the defendant in the operation of his business was conducting the same with excessive, unreasonable, and unnecessary noises, to the injury of petitioners, the court did not err in refusing to dismiss the action on general demurrer." Wilson v. Evans Hotel Co., 188 Ga. 498 (2) (4 S.E.2d 155, 124 A.L.R. 373).

We think that the instant case is controlled adversely to the contentions of the plaintiff in error by the holdings in the numerous cases cited, and particularly the recent case of SamFinley Inc. v. Russell, supra. Applying the tests set forth in the cases cited herein, the petition set forth a cause of action, and the court did not err in overruling the demurrer of the defendant thereto.

Judgment affirmed. Sutton, C. J., and Felton, J., concur.