Barton v. Rogers , 166 Ga. 802 ( 1928 )

Russell, C. J.

1. The court did not err in disallowing an amendment pleading acts of nuisance subsequently to the filing of the original petition. As amendments relate to the commencement of the suit, facts variant from the circumstances and conditions obtaining at the time suit was filed would be irrelevant and incompetent to establish allegations based upon a theory different from that relied on at the time of the filing of the action, and would add a new and distinct cause of action.

2. According to the definition adopted by this court in Standard Oil Co. v. Kahn, 165 Ga. 575, 576 (141 S. E. 643), “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.” A coal and ice business, though conducted on a vacant lot fronting a street which is ■“essentially residential,” does not fall within the above definition. It has been expressly held that a stable where mules or horses are kept is not a nuisance per se. Harrison v. Brooks, 20 Ga. 537; Hope v. Governor’s Horse Guard, 153 Ga. 633 (113 S. E. 189); Rounsaville v. Kohlheim, 68 Ga. 668 (45 Am. R. 505).

3. Mere anticipation of injury amounting to a nuisance apprehended to ensue from the conduct of a lawful business in an improper manner will not authorize the.grant of an injunction; and so it is not error to refuse an interlocutory injunction against anticipated injury from the maintenance of a coal and ice business in close proximity to the residences of the petitioners, or because of the fear that petitioners would be injured by the lawful use of a stable in which to house animals used in the conduct of that business. Standard Oil Co. v. Kahn, supra, and cit.

4. Under the ruling of this court in Standard Oil Co. v. Kahn, supra, which presented a much stronger case on its facts than those here alleged, it would have been error for the trial judge to overrule the demurrer in this case. Therefore, e converso, in the present case it was not error to sustain the demurrer and dismiss the petition, since the same did not present sufficient facts to show that the business complained of constitutes a nuisance.

Judgment affirmed.

All the Justices concur. Branch & Howard and Bond Almand, for plaintiffs. Alexander & McLarty, for defendant.