Asphalt Products Company v. Beard

A petition for injunction against an alleged nuisance in operating an asphalt and cement plant in the City of Atlanta, held subject to general demurrer.

No. 13107. FEBRUARY 13, 1940. J. G. Beard filed a petition against Asphalt Products Company, a corporation, and W. B. Stewart, to enjoin an alleged nuisance in operating an asphalt and cement-mixing and manufacturing plant in the northwest part of Atlanta. The gist of the allegations is that the petitioner lived with his family in a residence about 200 feet from the defendants' plant, which was operated by steam with coal or some other substance; that the smoke from the plant was offensive in odor, polluted the atmosphere, impaired the health of petitioner and his family, and destroyed his property rights; that the operation of the plant practically all the time, day and night, with loud, harsh, rattling noises from the machinery, prevented them from getting the sleep and rest at night which are absolutely essential to good health; that the smoke, cinders, and fine dust from the plant blew all over and into their home, covering furniture and beds, and causing them to become gritty, dirty, and unfit for use, and prevented the family from hanging out clothes in the yard or on the premises; that these acts caused irreparable damage; that trucks from the plant, passing in front of the house, spilled concrete and asphalt mixture in the street, so that petitioner and others could not walk with safety along the street because the asphalt adhered to their shoes and their children's bare feet, causing such feet to become inflamed, and making it nearly impossible to remove such substances from shoes or bare feet.

The petition further alleged that there was a previous suit, which was brought by this petitioner in the same court in 1935, against Emulsified Asphalt Company, a corporation, operating at the same place, and which alleged substantially the same facts; that such company was enjoined from operating its business in an unlawful manner. A copy of that order is attached to the present petition, but none of the pleadings in the suit appear. The present petition also alleged that the individual defendant had knowledge of the former petition and order, and was now operating the plant, although it was under a different name, in violation of the previous order; that, while a valid city ordinance required a special permit for the operation of a cement-mixing plant, the defendants had obtained no such permit; that "upon information and to the best of [petitioner's] belief," the defendants had for some years been operating the cement-mixing plant without such a permit; that the defendants "have changed the name of the corporation for the purpose of evading the orders of the superior court;" that "they first operated as Emulsified Asphalt Company, and . . later they operated as the Amulco Company Inc., and are now operating as the Asphalt Products Company;" and that "to the best of his knowledge and belief, . . [the individual defendant] was president of all of these companies and . . managed and supervised the operation of the same and is now president, manager, and supervisor of the Asphalt Products Company now operating said plant." The prayers were for a temporary restraining order, enjoining the defendants "from operating said plant at said location," for a permanent injunction, enjoining the defendants "from the operation of said plant," and for "such other and further relief as the court may deem proper."

The defendants demurred generally on the grounds that the petition stated no cause of action, because it sought to enjoin the lawful operation of a business which was not a nuisance per se, and failed to state facts which would constitute an improper operation of a lawful business, or facts to authorize the relief prayed; that the allegations of fact showed a previous adjudication of the matters sought to be enjoined. The defendants demurred specially on the grounds that there was a misjoinder of parties and causes of action; that the averments relating to the former suit and injunction were mere conclusions of the pleader without stating facts; that the copy of the order granted was incomplete, and no complete copy of the suit was set forth, so that the court could determine as to the effect of the previous order; that the averments as to the relation between the present corporate and individual defendants and the predecessor corporations were mere conclusions without necessary facts; and that, although there is a general positive verification of "the facts contained in the foregoing petition" at the end of the petition, the averments relating to the corporation are not positively verified, because they are expressly stated as made only "upon information and belief."

The defendants assigned error on the overruling of their demurrers. 1. "That which the law authorizes . . , if done as the law authorizes, . . can not be a nuisance." Burrus v. Columbus, 105 Ga. 42, 46 (31 S.E. 124); City Council ofAugusta v. Lamar, 37 Ga. App. 418 (2) (140 S.E. 763). Thus, 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" (Thomoson v. Sammon, 174 Ga. 751, 757, 164 S.E. 45; Simpson v. DuPont Powder Co., 143 Ga. 465, 466,85 S.E. 344, L.R.A. 1915E, 430; Standard Oil Co. v. Kahn,165 Ga. 575, 576, 141 S.E. 643), or enjoin, as a nuisance peraccidens, 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. Simpson v. DuPont Powder Co., supra;Warren Co. v. Dickson, 185 Ga. 481, 484 (195 S.E. 568). The operation of an asphalt-manufacturing and cement mixing plant is not a nuisance per se. Nor does it become a nuisance peraccidens, if it is conducted in a manufacturing section of a city, merely because it is operated by coal or some fuel discharging obnoxious smoke and cinders, or release dust, or is accompanied by loud, rattling noises during the day and night, and is within 200 feet of a residence, where 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. This petition for injunction against the entire operation of such a plant not only failed to allege these facts, but showed on its face that a similar plant had been in the same location for several years, without even an averment that this operation did not antedate the residence in their home of the petitioner and his family. See Georgia Railroad Co. v.Maddox, 116 Ga. 64 (4), 77 (42 S.E. 315); Ruff v.Phillips, 50 Ga. 130, 133; 46 C. J. 666.

2. "A public nuisance, as distinguished from a private nuisance," will not be enjoined on the petition of an individual, "unless it causes special damage to the individual, in which the public do not participate." Warren Co. v. Dickson, supra, and cit.; Code, §§ 72-102, 72-103. The allegations of the petition as to the spilling of concrete and asphalt in a public street and its effect on persons walking along the street relate to a public nuisance, and stating no special damage show no cause of action.

3. The petition does not show any cause of action for a new injunction against the present corporate defendant named and its officer by virtue of an interlocutory injunction granted by the trial court in 1935 in another case against a corporate defendant with a different name. Not only is it not shown that the present individual defendant was a party defendant to that litigation, but there is no averment of fact sufficient to show that the corporate defendants in the two cases are the same. While it is alleged that the present corporate defendant and its officer "have changed the name of the corporation for the purpose of evading the orders of the superior court," first operating under the name of the corporate defendant in the previous suit, then under the name of a second stated corporation, and now under the name of the present corporate defendant, this conclusion could not legally be true, so as to treat the three named corporations as identical and bind the present corporate defendant by the former injunction, for the reason that it is legally impossible for the present corporate defendant and its officer to have effected such previous changes of the corporate name. Furthermore, even if the petition could be so construed, the remedy of the plaintiff would be, not to bring this new and additional action, but to enforce the order already obtained.

4. Under the preceding rulings the court erred in overruling the general demurrer to the petition.

Judgment reversed. All the Justices concur.