O.C.G.A. § 41-2-2 (2019)

Annotations

Law reviews. For note, “Town of Fort Oglethorpe v. Phillips: A Clarification of Georgia’s Pub-

lic 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 surveying Georgia cases dealing with environment, natural re-

sources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978). For note on 1999 amendment of this Code section, see 16 Ga. St. U.L. Rev. 211 (1999).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION AUTHORITY OF DISTRICT ATTORNEY JURISDICTION General Consideration Actions by private citizens require special injury. - Private citizen specially damaged by a public nuisance may proceed in the citizen’s own name and behalf to have the nuisance abated under former Civil Code 1895, §§ 4761 and 4766 (see now O.C.G.A. §§ 41-2-2 and 41-2-3). Savannah, F. & W. Ry. v. Gill, 118 Ga. 737, 45 S.E. 623, 1903 Ga. LEXIS 669 (1903); Trust Co. v. Ray, 125 Ga. 485, 54 S.E. 145, 1906 Ga. LEXIS 202 (1906). Private citizens cannot generally interfere to have a public nuisance enjoined. Sammons v. Sturgis, 145 Ga. 663, 89 S.E. 774, 1916 Ga. LEXIS 439 (1916). Generally, a public nuisance gives to any individual no right of action for injunction, but the nuisance must be abated by a process instituted in the name of the state. 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 LEXIS 280 (1930), superseded by statute as stated in Dinkler v. Jenkins, 118 Ga.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). If operation of a picture show on the Sabbath amounts to a public nuisance, such nuisance may be abated in the manner provided by law, or the nuisance may be enjoined upon an information filed by the solicitor general (now district attorney), but an injunction will not be granted at the instance of a private citizen unless one has sustained special injury. American Legion v. Miller, 183 Ga. 754, 189 S.E. 837, 1937 Ga. LEXIS 406 (1937); Crane v. Mays, 70 Ga. App. 66, 27 S.E.2d 347, 1943 Ga. App. LEXIS 245 (1943).

All injury to health is special, and necessarily limited in its effect to the individual affected, and is, in its nature, irreparable. It matters not that others within the sphere of the operation of the nuisance, whether public or private, may be affected likewise. Hunnicutt v. Eaton, 184 Ga. 485, 191 S.E. 919, 1937 Ga. LEXIS 558 (1937). While generally a private citizen may not have a public nuisance enjoined, such nuisance may be abated on the application of a citizen specially injured. Harbuck v. Richland Box Co., 204 Ga. 352, 49 S.E.2d 883, 1948 Ga. LEXIS 440 (1948). Allegations of petition in which petitioners sought equitable relief “as individuals, citizens, and taxpayers” from the closing of a railroad crossing were insufficient to show special damage to petitioners, or any damage not shared equally by all other “individuals, citizens, and taxpayers,” and the petition was therefore insufficient for the grant of any relief to the petitioners as individuals, citizens, and taxpayers. State Hwy. Dep’t v. Reed, 211 Ga. 197, 84 S.E.2d 561, 1954 Ga. LEXIS 528 (1954). Authority of District Attorney Acting on information of citizens. - Lewd house being per se a public nuisance, a court of equity has jurisdiction to abate the nuisance on a suit brought by the district attorney on the information of a citizen as a relator, without alleging or proving special injury to property. Edison v. Ramsey, 146 Ga. 767, 92 S.E. 513, 1917 Ga. LEXIS 493 (1917).

Authority of District Attorney (Cont’d)

gia Air Quality Control Act. J.D. Jewell, Inc. v. Hancock, 226 Ga. 480, 175 S.E.2d 847, 1970 Ga. LEXIS 569 (1970).

District attorney is not authorized to act on the information of citizens, except in case of a public nuisance. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817, 16 S.E.2d 753, 1941 Ga. LEXIS 561 (1941). In order for a solicitor general (now district attorney) to proceed for the public, on information filed with the solicitor by citizens, to enjoin a nuisance, the object which it is sought to enjoin must be a public nuisance. Southeastern Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 817, 16 S.E.2d 753, 1941 Ga. LEXIS 561 (1941). Complaint must name citizen furnishing information. - Court of equity will not entertain a bill in the name of one or more private citizens to restrain a public nuisance, no private injury or threatened injury being alleged to such citizens or to their property. In such a case, the nuisance being a purely public one, can only be restrained by the public, on information filed by a public officer, to wit: by the solicitor general (now district attorney) for the Circuit. This holding is declaratory of the common-law rule which is universally adopted and quite uniform. Mayor of Columbus v. Jaques, 30 Ga. 506, 1860 Ga. LEXIS 131 (1860). Complaint in equity filed by the district attorney to abate a public nuisance must name the citizen or citizens upon whose information the complaint is based. Chancey v. Hancock, 233 Ga. 734, 213 S.E.2d 633, 1975 Ga. LEXIS 1429 (1975). Authority not repealed by Air Quality Control Act. - Authority granted to district attorneys to abate public nuisances relating to air pollution was not repealed to any extent by the former Geor-

Jurisdiction Jurisdiction by court of equity to grant injunction. - Court of equity has jurisdiction, and in a proper case may by injunction restrain a public nuisance upon information filed by the solicitor general (now district attorney). Gullatt v. State ex rel. Collins, 169 Ga. 538, 150 S.E. 825, 1929 Ga. LEXIS 398 (1929). Court of equity has jurisdiction and in a proper case will, by injunction, restrain a public nuisance. 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). Equity, generally, will not interfere with the administration of the criminal law. The state, however, has an interest in the welfare, peace, and good order of the state’s citizens and communities and has provided in the state’s laws for the abatement of nuisances when the public generally is injured. 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). By clear and necessary implication, an injunction will lie in the name of the state to enjoin a public nuisance. 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).

RESEARCH REFERENCES Am. Jur. 2d. 58 Am. Jur. 2d, Nuisances, §§ 185 et seq., 201et seq., 347, et seq.. C.J.S. 43A C.J.S., Injunctions, § 33. 66 C.J.S., Nuisances, §§ 102 et seq., 111 et seq., 185 et seq.

ALR. Injunction to prevent establishment or maintenance of garbage or sewage disposal plant, 5 A.L.R. 920; 47 A.L.R. 1154. Special injury to property interest as condition of right to enjoin diversion of dedicated property, 41 A.L.R. 1410.

Animal rendering or bone-boiling plant or business as nuisance, 17 A.L.R.2d 1269. Public dances or dance halls as nuisances, 44 A.L.R.2d 1381. Statutes, ordinances, or regulations relating to private residential swimming pools, 92 A.L.R.2d 1283. Saloons or taverns as nuisance, 5 A.L.R.3d 989. Water distributor’s liability for injuries due to condition of service lines, meters, and the like, which serve individual consumer, 20 A.L.R.3d 1363. Liability in connection with fire or explosion of explosives while being stored or transported, 35 A.L.R.3d 1177. Propriety of injunctive relief against di-

version of water by municipal corporation or public utility, 42 A.L.R.3d 426. Public swimming pool as nuisance, 49 A.L.R.3d 652. Gasoline or other fuel storage tanks as nuisance, 50 A.L.R.3d 209. Exhibition of obscene motion pictures as nuisance, 50 A.L.R.3d 969. Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency, 60 A.L.R.3d 665. Airport operations or flight of aircraft as nuisance, 79 A.L.R.3d 253. Existence of, and relief from, nuisance created by operation of air conditioning or ventilating equipment, 79 A.L.R.3d 320. Carwash as nuisance, 4 A.L.R.4th 1308.