O.C.G.A. § 41-2-4 (2019)

Annotations

Law reviews. For note discussing the abatement of nonconforming uses as nuisances, see 10 Ga. St. B.J. 302 (1973).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION BASIS OF INJUNCTION JURISDICTION ORDER OF ABATEMENT General Consideration Injunction will lie in name of state. - 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 LEXIS 280 (1930), superseded by statute as stated in Dinkler v. Jenkins, 118 Ga.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). 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 LEXIS 280 (1930), superseded by statute as stated in Dinkler v. Jenkins, 118 Ga.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). Basis of Injunction Nuisance must be certain. - It is only when it is made to appear with rea-

sonable certainty that an instrumentality in the course of construction will necessarily constitute a nuisance that a court of equity will exercise the power to restrain. Elder v. City of Winder, 201 Ga. 511, 40 S.E.2d 659, 1946 Ga. LEXIS 282 (1946). Court of equity will only exercise the power to restrain the erection of a building, and the maintenance therein, after construction, of a lawful business, on the ground that the operation of such business will constitute a nuisance, when it is made to appear with reasonable certainty that such operation necessarily constitutes a nuisance, the consequences of which will be irreparable in damages. Powell v. Garmany, 208 Ga. 550, 67 S.E.2d 781, 1951 Ga. LEXIS 435 (1951). If the injury is either irreparable or continuing, an injunction will be granted. Farley v. Gate City Gas Light Co., 105 Ga. 323, 31 S.E. 193, 1898 Ga. LEXIS 513 (1898). Nuisance may be abated in equity if the hurt or damage is irreparable or continu-

ing. Isley v. Little, 217 Ga. 586, 124 S.E.2d 80, 1962 Ga. LEXIS 331 (1962). Nuisance per accidens by reason of circumstances and surroundings may be abated in equity if the hurt or damage is irreparable or continuing. Camp v. Warrington, 227 Ga. 674, 182 S.E.2d 419, 1971 Ga. LEXIS 814 (1971). Injunction will be granted when the damages can be ascertained, and all rights finally adjudicated in one action. Wheeler v. Steele, 50 Ga. 24 (1873); Powell v. Foster, 59 Ga. 790, 1877 Ga. LEXIS 398 (1877). Continuing nuisance gives a new cause of action for each day of its continued maintenance, and in such a case, in order to avoid a multiplicity of suits, a court of equity will entertain jurisdiction to enjoin the nuisance and also have the nuisance abated. 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). Evidence obtained by illegal search or seizure. - When the evidence in support of injunctions to abate a public nuisance is obtained by illegal searches and seizures, the portions of the judgments granting such injunctions are void. Carson v. State ex rel. Price, 221 Ga. 299, 144 S.E.2d 384, 1965 Ga. LEXIS 441 (1965). Exclusion of opinion evidence of nonexperts. - Method of taking testimony, when an injunction had been applied for, was found in former Part 2, Art. 2, Ch. 10, T. 24; however, opinion evidence of nonexperts would be excluded. Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472, 67 S.E. 1126, 1910 Ga. LEXIS 230 (1910). Mere apprehension of injury and damage. - Allegation of “mere speculative or contingent injuries, with nothing to show that they will in fact happen,” will not support a prayer to enjoin a nuisance. Harrison v. Brooks, 20 Ga. 537, 1856 Ga. LEXIS 95 (1856); Bailey v. Ross, 68 Ga. 735, 1882 Ga. LEXIS 94 (1882); Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472, 67 S.E. 1126, 1910 Ga. LEXIS 230 (1910); Elder v. City of Winder, 201 Ga. 511, 40 S.E.2d 659, 1946 Ga. LEXIS 282 (1946).

Mere apprehension of irreparable injury from an alleged nuisance, consisting of a house in course of construction for a lawful business use, is not sufficient to authorize an injunction. If it be a nuisance, the consequences must be to a reasonable degree certain. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817, 1934 Ga. LEXIS 91 (1934). Mere apprehension of irreparable injury from an alleged nuisance consisting of a house in the course of construction or alteration for a lawful business is not sufficient to authorize an injunction. Roberts v. Rich, 200 Ga. 497, 37 S.E.2d 401, 1946 Ga. LEXIS 414 (1946). Allegations of mere speculative or contingent injuries, with nothing to show that in fact the injuries will happen, are insufficient to support a prayer for injunctive relief. Powell v. Garmany, 208 Ga. 550, 67 S.E.2d 781, 1951 Ga. LEXIS 435 (1951). Mere apprehension of injury, based on the assumption that a lawful business not then in operation will be operated in the future in an improper manner, so as to become a nuisance, is not sufficient to authorize equity to enjoin the erection of a building wherein such business is to be carried on. Powell v. Garmany, 208 Ga. 550, 67 S.E.2d 781, 1951 Ga. LEXIS 435 (1951). Mere anticipation of injury from the operation of a lawful business will not authorize the grant of an injunction. Davis v. Miller, 212 Ga. 836, 96 S.E.2d 498, 1957 Ga. LEXIS 274 (1957). When a petition fails to show the facts from which it appears with reasonable certainty that the operation of the business will work hurt, inconvenience, and damage, it falls just short of alleging a nuisance per accidens against which an injunction should be granted. Griffith v. Newman, 217 Ga. 533, 123 S.E.2d 723, 1962 Ga. LEXIS 315 (1962). While mere apprehension of injury and damage is insufficient, if it is made to appear with reasonable certainty that irreparable harm and damage will occur from the operation of an otherwise lawful business amounting to a continuing nuisance, equity will restrain the construction, maintenance, or operation of such

Basis of Injunction (Cont’d) lawful business. Isley v. Little, 217 Ga. 586, 124 S.E.2d 80, 1962 Ga. LEXIS 331 (1962); Camp v. Warrington, 227 Ga. 674, 182 S.E.2d 419, 1971 Ga. LEXIS 814 (1971). Fears of abutting landowners that land condemned for use as a football stadium would become a nuisance were too speculative to permit the enjoining of the condemnation. Herren v. Board of Educ., 219 Ga. 431, 134 S.E.2d 6, 1963 Ga. LEXIS 475 (1963). Trial court properly declined to permanently enjoin the defendants from using their property as a public motocross track. The defendants closed the track to the public before the plaintiffs filed suit, and the plaintiffs did not establish to a reasonably certain degree under O.C.G.A. § 412-4 that the defendants would reopen it to the public; thus, the trial court was not required to issue an injunction merely because the plaintiffs apprehended a public use at some future time. Evans v. Knott, 282 Ga. 584, 652 S.E.2d 535, 2007 Ga. LEXIS 777 (2007). Granting and dissolution of injunctions. - Interlocutory injunction may be granted against the establishment of business until the final trial of the case before the jury. Morrison v. Slappey, 153 Ga. 724, 113 S.E. 82, 1922 Ga. LEXIS 160 (1922). Use of restraining order. - While an injunction which is purely mandatory in the injunction’s nature cannot be granted, the court may grant an order the essential nature of which is to restrain, although in yielding obedience to the restrain the defendant may incidentally be compelled to perform some act. Central of Ga. Ry. v. Americus Constr. Co., 133 Ga. 392, 65 S.E. 855, 1909 Ga. LEXIS 222 (1909). Injunction granted enjoining escape of gases from a city sewer. - See Central of Ga. Ry. v. Americus Constr. Co., 133 Ga. 392, 65 S.E. 855, 1909 Ga. LEXIS 222 (1909). Unlicensed obstruction of public street. - See Savannah, A. & G.R.R. v. Shields, 33 Ga. 601 (1863). Dumping trash on another’s land. - See Lowe v. Holbrook, 71 Ga. 563, 1883 Ga. LEXIS 222 (1883); Butler v. Mayor of

Thomasville, 74 Ga. 570, 1885 Ga. LEXIS 362 (1885). Obstruction of an alley. - See Murphey v. Harker, 115 Ga. 77, 41 S.E. 585, 1902 Ga. LEXIS 308 (1902). Diversion of a watercourse. - See Persons v. Hill, 33 Ga. 141 (1864). Municipal license of cars in its street for private use. - See Mayor of Macon v. Harris, 73 Ga. 428, 1884 Ga. LEXIS 143 (1884). Construction of a pond. - See De Vaughn v. Minor, 77 Ga. 809, 1 S.E. 433, 1887 Ga. LEXIS 152 (1887). Maintaining livery stable. - See Coker v. Birge, 10 Ga. 336, 1851 Ga. LEXIS 107 (1851). But see Rounsaville v. Kohlheim, 68 Ga. 668, 1882 Ga. LEXIS 81 (1882). Operation of poultry houses. - See May v. Brueshaber, 265 Ga. 889, 466 S.E.2d 196, 1995 Ga. LEXIS 1220 (1995). Grocery business in residential area. - It was not error for a trial court to dismiss a petition complaining that a proposed warehouse and wholesale grocery business in a residential section would constitute a nuisance, causing irreparable damage to the plaintiffs, and seeking an injunction to restrain the construction of the proposed building, because such a business is not necessarily a nuisance per se, even in a residential neighborhood, and mere apprehension of irreparable injury is insufficient. Roberts v. Rich, 200 Ga. 497, 37 S.E.2d 401, 1946 Ga. LEXIS 414 (1946). Effect of abatement of nuisance before trial. - If subsequently to the institution of the action, but prior to the trial, the defendant has practically abated the nuisance, a refusal to grant an injunction is proper. Farley v. Gate City Gas Light Co., 105 Ga. 323, 31 S.E. 193, 1898 Ga. LEXIS 513 (1898). Jurisdiction 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). Prospective or future damages not recoverable. - Equity courts have the power to abate nuisances, but, if the nuisance complained of is merely temporary, then prospective or future damages, as damages for permanent injury, are not recoverable. Ward v. Southern Brighton Mills, 45 Ga. App. 262, 164 S.E. 214, 1932 Ga. App. LEXIS 275 (1932). Application of equity to nuisance and not criminal law. - 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). Order of Abatement Sufficiency of order. - Order restraining the defendant from permitting any gases or vapors to escape from, or be carried beyond, the ground owned by the defendant company and upon which the company’s plant was located, so as to constitute a nuisance, as defined in former Civil Code 1910, §§ 4457 and 4459 (see now O.C.G.A. §§ 41-1-1 and 41-2-4) was sufficiently specific. Morris Fertilizer Co. v. Boykin, 149 Ga. 673, 101 S.E. 799, 1920 Ga. LEXIS 366 (1920).

RESEARCH REFERENCES Am. Jur. 2d. 42 Am. Jur. 2d, Injunctions, § 1 et seq. 58 Am. Jur. 2d, Nuisances, § 258 et seq. C.J.S. 43A C.J.S., Injunctions, §§ 8 et seq. 66 C.J.S., Nuisances, § 202 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. Nuisance resulting from smoke alone as subject for injunctive relief, 6 A.L.R. 1575.

Right to enjoin threatened or anticipated nuisance, 26 A.L.R. 937; 32 A.L.R. 724; 55 A.L.R. 880. Institution for the punishment or rehabilitation of criminals, delinquents, or alcoholics as enjoinable nuisance, 21 A.L.R.3d 1058. Punitive damages in actions based on nuisance, 31 A.L.R.3d 1346. Operation of cement plant as nuisance, 82 A.L.R.3d 1004.