O.C.G.A. § 41-1-2 (2019)

Annotations

Cross references. When infraction of public duty gives cause of action to individual, § 51-1-7. Law reviews. For article discussing federal liability for pollution abatement in condemnation actions, see 17 Mercer L. Rev. 364 (1966). For note, “Town of Fort Oglethorpe v.

Phillips: A Clarification of Georgia’s Public Nuisance Law?,” see 5 Ga. St. B.J. 474 (1969). For note discussing the abatement of nonconforming uses as nuisances, see 10 Ga. St. B.J. 302 (1973). For article discussing Georgia’s practice of exposing municipalities to tort liability through the use of nuisance law, see 12 Ga. St. B. J. 11 (1975). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005) and 58 Mercer L. Rev. 267 (2006).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PRIVATE NUISANCE PUBLIC NUISANCE General Consideration Notice before suit not required. - Action may be maintained for damages resulting from a nuisance, without notice or request to abate the nuisance. Exley v. Southern Cotton Oil Co., 151 F. 101, 1907 U.S. App. LEXIS 4955 (C.C.D. Ga. 1907). Private Nuisance Definition. - “Private nuisance” is one limited in its injurious effect to one or a few individuals, which may injure either the person or property or both, and in either case a right of action accrues. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313, 1957 Ga. LEXIS 319 (1957). Mere violation of an ordinance does not create a private nuisance. Jillson v. Barton, 139 Ga. App. 767, 229 S.E.2d 476, 1976 Ga. App. LEXIS 1980 (1976). Actionability of private nuisance. - Creation of a private nuisance is actionable, without regard to the question of negligence. Bonner v. Welborn, 7 Ga. 296, 1849 Ga. LEXIS 142 (1849); Exley v.

Southern Cotton Oil Co., 151 F. 101, 1907 U.S. App. LEXIS 4955 (C.C.D. Ga. 1907). Public Nuisance Extensive injuries not required. - Language in this section is not used in the sense that every person in the area must have been actually hurt or injured in order to show a public nuisance. Atlanta Processing Co. v. Brown, 227 Ga. 203, 179 S.E.2d 752, 1971 Ga. LEXIS 639 (1971). All members of public not injured. - Trial court correctly entered summary judgment against the mothers on their public nuisance count because the evidence did not show that all members of the public who came into contact with the river were injured and, thus, the mother’s public nuisance cause of action was effectively erased. During the decades prior to the deaths, no other person had ever drowned when entering the river via the boat ramp, whether during power generation or otherwise, and the other six boys who accompanied the decedents into the water on the ramp that day were unin-

jured. White v. Ga. Power Co., 265 Ga. App. 664, 595 S.E.2d 353, 2004 Ga. App. LEXIS 225 (2004), cert. denied, No. S04C1090, 2004 Ga. LEXIS 423 (Ga. May 24, 2004). Because there was no evidence that a sewer line backup injured more than a few individuals who came into contact with it, it did not constitute a public nuisance, pursuant to O.C.G.A. § 41-1-2, and the four-year limitations period of O.C.G.A. § 9-3-30 applied to the nuisance claim brought by the property owners against a city. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495, 2005 Ga. App. LEXIS 998 (2005), cert. denied, No. S06C0356, 2006 Ga. LEXIS 235 (Ga. Mar. 27, 2006). Gaming house. - Maintenance of a gaming house or a gaming place is a public nuisance. Gullatt v. State ex rel. Collins, 169 Ga. 538, 150 S.E. 825, 1929 Ga. LEXIS 398 (1929); Albany Theater, Inc. v. Short, 171 Ga. 57, 154 S.E. 895, 1930 Ga. LEXIS 280 (1930), superseded by statute as stated in Dinkler v. Jenkins, 118 Ga. App. 239, 163 S.E.2d 443, 1968 Ga. App. LEXIS 1363, 1968 Ga. App. LEXIS 1279 (1968). Street-flow obstructions. - Any permanent structure in a street which materially interferes with travel thereon is a public nuisance. City of East Point v. Henry Chanin Corp., 210 Ga. 628, 81 S.E.2d 812, 1954 Ga. LEXIS 375 (1954). Disposal of chemicals. - Plaintiff’s disposal of the plaintiff’s chemicals at a specified site did not amount to creation of a public nuisance since: (1) any contamination of the property caused by the plaintiff did not affect a common right of all members of the public, such as the right to clean air or clean water, and (2) it was not shown that the rights of more than a few individuals were affected by the contamination. Briggs & Stratton Corp. v. Concrete Sales & Servs., 29 F. Supp. 2d 1372, 1998 U.S. Dist. LEXIS 19393 (M.D. Ga. 1998). Landing and steps of a church, though allegedly so negligently constructed as to be hazardous to life and limb, do not constitute a public nuisance since there is no right common to all of the public to use the steps and landing of a church of a particular denomination. Cox

v. DeJarnette, 104 Ga. App. 664, 123 S.E.2d 16, 1961 Ga. App. LEXIS 766 (1961). All members of church not injured by Scouting abuse. - In the six plaintiffs’ lawsuit alleging sexual abuse by two scoutmasters, whose troop meetings were hosted on the churches’ property from the 1950s to the 1980s, the trial court did not err in dismissing the plaintiffs’ public nuisance claim as the sexual abuse conduct did not harm all persons who came into the sphere of church operations; and the plaintiffs did not allege that the conduct had an appreciable blighting effect on the surrounding community. McArthur v. Beech Haven Baptist Church of Athens, 361 Ga. App. 877, 864 S.E.2d 189, 2021 Ga. App. LEXIS 517 (2021). Plate glass doors. - Maintenance and operation of plate glass doors in public civic center was not public nuisance. Zellers v. Theater of Stars, Inc., 171 Ga. App. 406, 319 S.E.2d 553, 1984 Ga. App. LEXIS 2217 (1984). Barricades on a county road marking the approaches to the former site of a timber bridge spanning a railroad track did not constitute a public nuisance. Kitchen v. CSX Transp., Inc., 265 Ga. 206, 453 S.E.2d 712, 1995 Ga. LEXIS 113 (1995). Defective condition of private street. - In view of evidence that a property owner’s private road impeded the necessary passage of a city’s emergency personnel so as to significantly endanger the health and safety of those persons residing at apartment complexes adjacent to the road, the owner was improperly granted summary judgment in the city’s suit seeking abatement of a public nuisance under O.C.G.A. § 41-1-2. City of College Park v. 2600 Camp Creek, LLC, 293 Ga. App. 207, 666 S.E.2d 607, 2008 Ga. App. LEXIS 911 (2008). Repeated violations with threats of continuing violations. - Constant and repeated violations of former statutes relating to the business of buying wages or salaries, and to the small-loan business, with threats to continue the businesses, do not amount to such a public nuisance as may be abated and prevented by a suit in the name of the state. State ex rel.

Public Nuisance (Cont’d) Boykin v. Ball Inv. Co., 191 Ga. 382, 12 S.E.2d 574, 1940 Ga. LEXIS 657 (1940). Indictment for public nuisance. - Public nuisance is the subject of indict-

ment; not of action. South Carolina R.R. v. Moore & Philpot, 28 Ga. 398, 1859 Ga. LEXIS 226 (1859).

OPINIONS OF THE ATTORNEY GENERAL Obstruction of crossing on public highway by railroad. - Public nuisance possibly occurs if a railroad blocks a crossing on a public highway for an unreasonable period of time; for such an action

to lie against a railroad, it must be shown that the particular act is an interference or annoyance to the public in the common use of public highways. 1970 Op. Att’y Gen. No. 70-58.

RESEARCH REFERENCES Am. Jur. 2d. 58 Am. Jur. 2d, Nuisances, §§ 32 et seq. C.J.S. 66 C.J.S., Nuisances, §§ 1, 8 et seq. ALR. Trolley poles in street as nuisance, 2 A.L.R. 496. Noise from operation of industrial plant as nuisance, 23 A.L.R. 1407; 90 A.L.R. 1207. Nuisance by encroachment of walls or other parts of building on another’s land as permanent or continuing, 29 A.L.R. 839. Amusement park as nuisance, 33 A.L.R. 725. Gas, water, or electric light plant as a nuisance, and the remedy therefor, 37 A.L.R. 800. Pesthouse or contagious disease hospital as nuisance, 48 A.L.R. 518. Aeroplanes and aeronautics, 99 A.L.R. 173. Legal aspects of radio communication and broadcasting, 124 A.L.R. 982; 171 A.L.R. 765. Nuisance within contemplation of statute imposing upon municipality duty to keep streets and other public places free of “nuisance,” as absolute nuisance or as qualified nuisance, dependent upon negligence, 155 A.L.R. 60. Racing, or betting on races, as nuisance, 166 A.L.R. 1264. Animal rendering or bone-boiling plant or business as nuisance, 17 A.L.R.2d 1269. Liability for injury to property occa-

sioned by oil, water, or the like flowing from well, 19 A.L.R.2d 1025. Landowner’s or occupant’s liability in damages for escape, without negligence, of harmful gases or fumes from premises, 54 A.L.R.2d 764; 2 A.L.R.4th 1054. Automobile sales lot or used car lot as nuisance, 56 A.L.R.2d 776. Saloons or taverns as nuisance, 5 A.L.R.3d 989. Keeping of dogs as enjoinable nuisance, 11 A.L.R.3d 1399. Children’s playground as nuisance, 32 A.L.R.3d 1127. Public swimming pool as nuisance, 49 A.L.R.3d 652. Exhibition of obscene motion pictures as nuisance, 50 A.L.R.3d 969. Unsolicited mailing, distribution, house call, or telephone call as invasion of privacy, 56 A.L.R.3d 457. Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency, 60 A.L.R.3d 665. Recovery in trespass for injury to land caused by airborne pollutants, 2 A.L.R.4th 1054. Carwash as nuisance, 4 A.L.R.4th 1308. Funeral home as private nuisance, 8 A.L.R.4th 324. Tower or antenna as constituting nuisance, 88 A.L.R.5th 641. Keeping of domestic animal as constituting public or private nuisance, 90 A.L.R.5th 619. Sewage treatment plant as constituting nuisance, 92 A.L.R.5th 517.

Nudity as constituting nuisance, 92 A.L.R.5th 593. Remedies for sewage treatment plant

alleged or deemed to be nuisance, 101 A.L.R.5th 287.