O.C.G.A. § 41-1-4 (2019)

Annotations

Law reviews. For note discussing nuisance action as a

remedy for damage caused by sonic booms, see 2 Ga. L. Rev. 83 (1967). For note, “Town of Fort Oglethorpe v. Phillips: A Clarification of Georgia’s Public Nuisance Law?,” see 5 Ga. St. B.J. 474 (1969).

JUDICIAL DECISIONS Coming to a nuisance. - Old rule, maintained by some authorities, that coming to a nuisance will prevent a person so coming from making any complaint, has long since been exploded. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313, 1957 Ga. LEXIS 319 (1957). One who purchases land adjoining a private nuisance may abate it. City of Rentz v. Roach, 154 Ga. 491, 115 S.E. 94, 1922 Ga. LEXIS 402 (1922). Charge that plaintiffs had the right to move near a kennel though the plaintiffs knew the kennel was a nuisance, and could rely on the presumption that the nuisance would be abated and stopped, was not erroneous. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313, 1957 Ga. LEXIS 319 (1957). Nonowner lacked standing. - Party could not prevail on the party’s claim for continuing private nuisance since the party sold the property at issue and did not own the property during any part of the four years preceding the filing of the action. Briggs & Stratton Corp. v. Concrete Sales & Servs., 29 F. Supp. 2d 1372, 1998 U.S. Dist. LEXIS 19393 (M.D. Ga. 1998). Recovery for both personal and property damage. - Damages for discomfort and annoyance caused to the owner and the owner’s family are separate and distinct from damage to the value of the realty and do not constitute a double recovery for a single injury. In an action for nuisance, the property owners may recover for both damage to person and damage to property. City of Atlanta v. Murphy, 194 Ga. App. 652, 391 S.E.2d 474, 1990 Ga. App. LEXIS 277 (1990); Arvida/JMB Partners v. Hadaway, 227 Ga. App. 335, 489 S.E.2d 125. Since the owners’ evidence of repeated flooding established an abatable nuisance, an award of both personal and property damages as well as attorney’s fees was adequate; the trial court’s jury charge was proper and the court did not abuse the court’s discretion in denying a directed verdict or a judgment notwithstanding the verdict. City of Gainesville v. Waters, 258 Ga. App. 555, 574 S.E.2d 638, 2002

Ga. App. LEXIS 1502 (2002), cert. denied, No. S03C0510, 2003 Ga. LEXIS 226 (Ga. Feb. 24, 2003). In a nuisance suit brought by a property owner against the City of Atlanta, involving the city failing to properly maintain a storm pipe that traversed and served the property owner’s land which resulted in extensive flooding of the land and the home, the trial court properly awarded compensatory damages in the amount of $300,000 and that amount was not excessive, as a matter of law, as there was evidence that the property owner suffered special damages in the amount of $203,376, including loss of personal property, diminution in the value of the property, and rental expenses incurred when the property owner was forced to move from the home. There was also sufficient evidence to support an award of damages for personal injuries and damages for annoyance and discomfort. City of Atlanta v. Hofrichter, 291 Ga. App. 883, 663 S.E.2d 379, 2008 Ga. App. LEXIS 672 (2008). Homeowners could recover for both the homeowners’ discomfort and annoyance caused by the alleged nuisance and for the diminution in the homeowners’ property value because the former was designed to compensate the homeowners for what the homeowners had already experienced as residents of the property due to the factory, while future discomfort and annoyance is reflected in the diminished fair market value of the property. Toyo Tire N. Am. Mfg. v. Davis, 299 Ga. 155, 787 S.E.2d 171, 2016 Ga. LEXIS 402 (2016). Apartment complex swing. - Trial court erred by denying the former property manager summary judgment on the apartment complex residents’ private nuisance claim because the residents failed to present any evidence that the manager’s conduct invaded their property interests. No evidence established that the swings at the apartment complex interfered with anyone’s use or enjoyment of their possessory interests in the apartment complex before the swing collapsed, and the residents had both used the swings before without issue. Blondell v. Courtney Station 300 LLC, 362 Ga. App. 1, 865 S.E.2d 589, 2021 Ga. App. LEXIS 559 (2021).

Damages not excessive. - Because the jury heard evidence of the defendant’s interference with plaintiff’s right to enjoy possession of the plaintiff’s property and the plaintiff’s discomfort and annoyance and the unobjected to jury form specifically authorized general damages, the trial court did not abuse the court’s discretion in rejecting the claim of excessiveness. Woodmen of the World v. Jordan, 231 Ga. App. 517, 499 S.E.2d 900. Landowners of a lakefront property created a nuisance when they went onto a corporation’s dam and plugged the weakened dam to prevent a lake from draining. Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894, 613 S.E.2d 673, 2005 Ga. App. LEXIS 332 (2005), cert. denied, No. S05C1459, 2005 Ga. LEXIS 703 (Ga. Oct. 11, 2005), cert. denied, No. S05C1369, 2005 Ga. LEXIS 704 (Ga. Oct. 11, 2005). Damages from nuisance alleged from energy plant noise and vibrations. - Evidence supported a jury’s verdict that there was a change in the nature of the noises produced by a power plant that used gas-fired combustion turbine units, sufficient to allow nearby landowners to bring nuisance claims that were timely under O.C.G.A. § 9-3-30(a); awards of damages, punitive damages,

and attorney’s fees were upheld. Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 774 S.E.2d 755, 2015 Ga. App. LEXIS 384 (2015), cert. denied, No. S15C1689, 2015 Ga. LEXIS 704 (Ga. Oct. 5, 2015). Inverse condemnation for nuisance. - Summary judgment was properly granted to a county on an inverse condemnation claim filed by four property owners as the county did not either create or maintain a construction project that allegedly created a nuisance that harmed the owners since a city owned and maintained the nuisance property, the county exercised no control over the properties, and the county could not be deemed to have performed a continuous act that caused the owners’ harm; while the county bid out the construction contract, the county had no role in designing the plans for the contractor to use on the project or in supervising the contractor’s work and the owners did not show that the county official performed any action beyond passing on an inquiry between the Georgia Department of Transportation and the city. Reidling v. City of Gainesville, 280 Ga. App. 698, 634 S.E.2d 862, 2006 Ga. App. LEXIS 932 (2006), cert. denied, No. S06C2095, 2006 Ga. LEXIS 855 (Ga. Oct. 16, 2006).

RESEARCH REFERENCES Am. Jur. 2d. 58 Am. Jur. 2d, Nuisances, §§ 185- 191 et seq. C.J.S. 66 C.J.S., Nuisances, § 105 et seq. ALR. Effect of delay in seeking equitable relief against nuisance, 6 A.L.R. 1098. Right to enjoin threatened or anticipated nuisance, 32 A.L.R. 724; 55 A.L.R. 880. Oil as nuisance; liability for damage to adjoining property, 60 A.L.R. 483. Automobile gas filling or supply station as a nuisance, 124 A.L.R. 383. Legal aspects of radio communication and broadcasting, 124 A.L.R. 982; 171 A.L.R. 765. Nuisance as entitling owner or occupant of real estate to recover damages for per-

sonal inconvenience, discomfort, annoyance, anguish, or sickness, distinct from, or in addition to, damages depreciation in value of property or its use, 142 A.L.R. 1307. Injunction against acts or conduct, in street or vicinity, tending to disparage plaintiff’s business or his merchandise, 144 A.L.R. 1181. Supermarket, superstore, or public market as a nuisance, 146 A.L.R. 1407. Liability of private persons or corporations draining into sewer maintained by municipality or other public body for damage to riparian owners or others, 170 A.L.R. 1192. When statute of limitation commences to run against damage from overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302.

Casting of light on another’s premises as constituting actionable wrong, 5 A.L.R.2d 705; 79 A.L.R.3d 253. Fire as attractive nuisance, 27 A.L.R.2d 1187. Private school as nuisance, 27 A.L.R.2d 1249. Liability of landowner for injury to or death of child caused by cave-in or landslide, 28 A.L.R.2d 195. Liability of landowner for injury to or death of child resulting from piled or stacked lumber or other building materials, 28 A.L.R.2d 218. Expense incurred by injured party in remedying temporary nuisance or in preventing injury as element of damages recoverable, 41 A.L.R.2d 1064. 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. Rule of municipal immunity from liability for acts in performance of governmental functions as applicable to personal injury or death as result of a nuisance, 56 A.L.R.2d 1415. Liability for property damage caused by

vibrations, or the like, without blasting or explosion, 79 A.L.R.2d 966. Nonencroaching vegetation as a private nuisance, 83 A.L.R.2d 936. Liability of vendor or grantor of real estate for personal injury to purchaser or third person due to defective condition of premises, 48 A.L.R.3d 1027. Residential swimming pool as nuisance, 49 A.L.R.3d 545. Airport operations or flight of aircraft as nuisance, 79 A.L.R.3d 253. Operation of cement plant as nuisance, 82 A.L.R.3d 1004. Recovery in trespass for injury to land caused by airborne pollutants, 2 A.L.R.4th 1054. Funeral home as private nuisance, 8 A.L.R.4th 324. Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542. Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863. Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.