Butler v. Mayor of Thomasville , 1885 Ga. LEXIS 362 ( 1885 )

Blandford. Justice.

1. We think the allegations in the bill and the admissions in the answer make a case of nuisance. The discharge of filthy sewage upon the land of another, which may probably cause injury to the health and sickness in the family of such person, and where the nuisance is continuing and likely to be 'permanent, and where the consequences are not barely possible, but to a reasonable degree certain, a court of equity may interpose to arrest such nuisance before completed. Code, §3002'. Again, we have held that if a nuisance causes special damage to an individual, in which the public do not participate, such special damage gives a right of action, and as an action may be brought for every day the nuisance continues, equity, which abhors a multiplicity of suits, will entertain jurisdiction so as to do full and complete justice between the parties and terminate the litigation. Georgia Chemical and Mining Company vs. Colquitt et al., 72 Ga.. 172; 18 Ga., 528. More especially will this be done when the party which seeks to create the nuisance is the only tribunal which has the power to abate the nuisance, as in this case. The nuisance is in the city of Thomasville, and it is this city, by its proper authorities, which has the power under the law to abate this nuisance, and yet it is the power which is perpetrating it. This case differs in this particular from Powell vs. Foster, 59 Ga., 790. Here it is the municipal authorities which seek to create the nuisance. No one can be a judge in his own'case. The damages likely to result to the plaintiff in error by reason of the nuisance are irreparable. See Wood’s Law of Nuisances, sections 502, 512, 301, 684, 685, 686; Code, §§3000, 3210, 3219, and citations, which fully sustain the text.

2. There is no power or authority vested in the city of Thomasville authorizing it to enter upon or take the land of plaintiff for the purpose of digging or laying a sewer thereon, by its charter or other acts of the legislature. Acts of 1874, page 167. Nor is there any mode prescribed for the condemnation of such property for public use. Without express grant of such power, a municipal corporation cannot exercise it. Private property cannot be taken or damaged for public use without just and adequate compensation being first paid. Constitution of this state; Code, §§5024, 2225. The legislature may authorize the taking of private property, as provided by section 2222. If such authority be improperly granted, the courts shall declare it inoperative. Code, §2223. To justify the authority claimed by the city in this case, two things must concur: 1st. The necessity for the taking. 2d. Payment of just and adequate compensation before taking. The constitution and laws of this state guard with vigilance and jealousy the private rights and property of the citizen, and the courts of the state have ever extended their aid and assistance in the same direction, as will be seen by an examination of the following authorities: 1 Kelly, 524; 3 Id., 31, 333; 6 Ga., 130; 9 Id., 37, 341; 14 Id., 1; 19 Id., 427; 37 Id., 297; 33 Id., 508; 42 Id., 501; 33 Id., 625.

However much we are disinclined to interfere with the discretion of a chancellor in granting or refusing to grant an injunction, we feel constrained, under the facts set forth in this record, to reverse the decree refusing the injunction prayed for in this case, and to order an injunction to issue.

J udgment reversed.