O.C.G.A. § 41-2-5 (2019)

Annotations

Cross references. Content of municipal or county ordinances relating to repair, closing, or demolition of dwellings unfit for human habitation, § 36-61-11. Law reviews. For article, “Delegation in Georgia Lo-

cal Government Law,” see 7 Ga. St. B.J. 9 (1970). For article surveying Georgia cases dealing with environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION NOTICE DELEGATION OF POWER TO ABATE NUISANCES JURISDICTION PLEADING AND PRACTICE General Consideration It is an exercise of judicial power, to determine what is by law a nuisance and only those things which are by the common or statute law declared to be nuisances per se, or which in their very nature are such, may be summarily suppressed. City of Atlanta v. Aycock, 205 Ga. 441, 53 S.E.2d 744, 1949 Ga. LEXIS 373 (1949). Mere apprehension of injury. - Nuisance law does not apply if there is a mere apprehension of an irreparable injury. Wingate v. City of Doerun, 177 Ga. 373, 170 S.E. 226, 1933 Ga. LEXIS 183 (1933). Any nuisance injurious to the public health is within the terms of this section. Strong v. LaGrange Mills, 112 Ga. 117, 37 S.E. 117, 1900 Ga. LEXIS 60 (1900); Western & A.R.R. v. City of Atlanta, 113 Ga. 537, 38 S.E. 996, 1901 Ga. LEXIS 298 (1901); Peginis v. City of Atlanta, 132 Ga. 302, 63 S.E. 857, 1909 Ga. LEXIS 81 (1909); Griggs v. City of Macon, 154 Ga. 519, 114 S.E. 899, 1922 Ga. LEXIS 408 (1922). Proceedings in name of city upon application of citizen. - If the nuisance is a public one merely, and no private individual suffered special damages therefrom, then the proceedings to abate the nuisance should be in the name of the city upon the application of some citizen.

Calhoun ex rel. Chapman v. Gulf Oil Corp., 189 Ga. 414, 5 S.E.2d 902, 1939 Ga. LEXIS 712 (1939). Notice Building inspector not authorized to substitute the inspector’s judgment. - Under the general law of this state and this section, the building inspector of the City of Atlanta was not authorized to substitute the inspector’s judgment for that of the tribunal fixed by law, and serve notices on the property owners that the owners’ property “constitutes a nuisance,” or that the property had been “condemned.” City of Atlanta v. Aycock, 205 Ga. 441, 53 S.E.2d 744, 1949 Ga. LEXIS 373 (1949). Reasonable notice of hearing on abatement. - Reasonable notice to the property owner of the time and place of hearing must precede any judgment ordering the abatement (destruction) of private property as a nuisance. City of Atlanta v. Aycock, 205 Ga. 441, 53 S.E.2d 744, 1949 Ga. LEXIS 373 (1949). Delegation of Power to Abate Nuisances Lawful delegation of police power to abate nuisances. - City’s agreement to cooperate with the city’s local housing authority in effecting elimination of unsafe or insanitary dwellings with the ap-

proval of the United States Public Housing Administration does not contemplate or provide for an unlawful delegation of the city’s police power to abate nuisances to the public housing administration but amounts only to an assurance of a proper exercise of the power by the city to the end that it will do what it ought in any event to do, namely, eliminate unsafe or unsanitary dwellings in the interest of general welfare, as it alone can lawfully do. Telford v. City of Gainesville, 208 Ga. 56, 65 S.E.2d 246, 1951 Ga. LEXIS 292 (1951). Jurisdiction Jurisdiction generally. - This section gives no power to justices of the peace (now magistrates); power is vested in the city government alone. South Carolina R.R. v. Ells, 40 Ga. 87, 1869 Ga. LEXIS 24 (1869). Part of the section (formerly) relating to jurisdiction in cities of twenty thousand inhabitants confers such jurisdiction in the police court alone of the city where the nuisance exists, except in cases of nuisance per se. Western & A.R.R. v. City of Atlanta, 113 Ga. 537, 38 S.E. 996, 1901 Ga. LEXIS 298 (1901); Peginis v. City of Atlanta, 132 Ga. 302, 63 S.E. 857, 1909 Ga. LEXIS 81 (1909). Filing abatement proceedings with municipal authorities. - Proceedings to abate a nuisance, public or private, alleged to exist within an incorporated municipality, must be filed with and determined by the municipal authorities, unless there are special circumstances, requiring the intervention of equity. Waller v. Lanier, 198 Ga. 64, 30 S.E.2d 925, 1944 Ga. LEXIS 356 (1944); Mitchell v. Green, 201 Ga. 256, 39 S.E.2d 696, 1946 Ga. LEXIS 469 (1946). Section provides adequate remedy. - To abate a nuisance, public or private, the remedy provided in this section should be resorted to, unless the special facts make the remedy inadequate. Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785, 1946 Ga. LEXIS 302 (1946). This section provides an adequate remedy for the abatement of a nuisance, public or private, which has been created and which exists within the limits of a town or city, and that remedy must be resorted to

for its abatement, unless there are special facts which make the remedy inadequate. City of East Point v. Henry Chanin Corp., 210 Ga. 628, 81 S.E.2d 812, 1954 Ga. LEXIS 375 (1954). Plaintiff must apply to city recorder for order abating nuisance. - When the city responsible for an alleged nuisance (formerly) had a population of more than 20,000, the plaintiff was required to apply to the city’s recorder for an order abating the nuisance complained of. City of East Point v. Henry Chanin Corp., 210 Ga. 628, 81 S.E.2d 812, 1954 Ga. LEXIS 375 (1954). Review of recorder’s decision by certiorari in superior court. - Any decision rendered by city’s recorder had to be reviewed by certiorari in the superior court. City of East Point v. Henry Chanin Corp., 210 Ga. 628, 81 S.E.2d 812, 1954 Ga. LEXIS 375 (1954). Writ of prohibition properly denied. - When the City of Atlanta brought a proceeding in the recorder’s court to abate a nuisance, the penal features of the proceeding being abandoned, and the defendant sued out in the superior court a petition for the writ of prohibition to prevent the recorder from proceeding with the case, the writ was properly denied, the writ of prohibition is never granted when there is any other legal remedy, and this section provided an adequate and complete remedy in the case. Magbee v. City of Atlanta, 180 Ga. 733, 180 S.E. 485, 1935 Ga. LEXIS 544 (1935). Availability of certiorari. - Decision by the governing body of a municipality as to whether alleged acts constitute a nuisance, made after trial in which the parties at interest have participated, is a judicial determination from which certiorari will lie. Attaway v. Coleman, 213 Ga. 329, 99 S.E.2d 154, 1957 Ga. LEXIS 373 (1957). City criminal court empowered to abate continuing nuisance. - Fact that the General Assembly made the continuation of a nuisance after notice to abate a misdemeanor (O.C.G.A. § 41-1-6), does not preclude the criminal court of Cordele’s power to abate nuisances pursuant to the legislative authorization in O.C.G.A. § 41-2-5, and the court’s power

Jurisdiction (Cont’d) to enforce the court’s judgments by contempt pursuant to the legislative authorization in the city charter. Horne v. City of Cordele, 254 Ga. 346, 329 S.E.2d 134, 1985 Ga. LEXIS 685 (1985). Proceedings not criminal in nature. - Proceeding in municipal court to determine the question of whether a nuisance existed was not criminal or quasi criminal in nature since the court cannot fine or imprison the defendant in error, and the bond required for certiorari is that provided for in former Code 1933, §§ 19-206, 19-207, and 19-208 (see now O.C.G.A. § 5-4-5) for civil proceedings, and a bond under former Code 1933, §§ 19-214 and 19-215 (see now O.C.G.A. § 5-4-20) would not suffice. City of Atlanta v. Pazol, 95 Ga. App. 598, 98 S.E.2d 216, 1957 Ga. App. LEXIS 867 (1957). Equitable jurisdiction. - Equity will take jurisdiction when the majority of council are disqualified. Hill v. McBurney Oil & Fertilizer Co., 112 Ga. 788, 38 S.E. 42, 1901 Ga. LEXIS 92 (1901). When a municipal corporation itself is maintaining a nuisance, and a proper case exists for the nuisance’s abatement, equity will take jurisdiction, notwithstanding the provisions of this section, which prescribe the manner of abatement when the nuisance complained of shall exist in an incorporated town or city. City of Blue Ridge v. Kiker, 189 Ga. 717, 7 S.E.2d 237, 1940 Ga. LEXIS 354 (1940). Although a nuisance exists in a city under the government of a mayor or common council, a court of equity will in a proper case take jurisdiction of a suit to enjoin continuance of the nuisance, notwithstanding the provisions of this section, when the nuisance is a continuing one. State ex rel. Boykin v. Ball Inv. Co., 191 Ga. 382, 12 S.E.2d 574, 1940 Ga. LEXIS 657 (1940); Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785, 1946 Ga. LEXIS 302 (1946). When there is a continuing nuisance, which plaintiffs allege will cause sickness, the remedy provided under this section does not furnish an ample and complete remedy for the plaintiffs. Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785, 1946 Ga. LEXIS 302 (1946).

If alleged conduct constituted a continuing nuisance under former Code 1933, § 72-101 (see now O.C.G.A.§ 41-1-1), the plaintiff was entitled to equitable relief. Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785, 1946 Ga. LEXIS 302 (1946). Petition alleging that a nuisance was a continuing one and injuriously affected the comfort and health of the petitioners in described particulars, and alleging that unless enjoined would cause irreparable damage to petitioners and result in a multiplicity of suits, was not subject to the ground of demurrer that it showed on its face that the petitioners had an adequate remedy at law. Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785, 1946 Ga. LEXIS 302 (1946). Since a continuing nuisance was alleged, and since a continuing nuisance may be enjoined by a court of equity it was not error for the trial court to overrule the plea to the jurisdiction, wherein it was asserted that, by virtue of this section the mayor and city council of Springfield had jurisdiction to abate a nuisance in the form of a previously erected obstruction to a private way within the corporate limits of a city of less than 20,000 population. Rahn v. Pittman, 216 Ga. 523, 118 S.E.2d 85, 1961 Ga. LEXIS 264 (1961). In situations where there is a continuing nuisance, this section does not afford an adequate remedy at law and a court of equity will entertain jurisdiction to enjoin the nuisance and have the nuisance abated. City of Atlanta v. Wolcott, 240 Ga. 244, 240 S.E.2d 83, 1977 Ga. LEXIS 1462 (1977). No conversion to equitable proceeding by use of evidentiary standard. - When a party elected to proceed under former Code 1933, 72-401 (see now O.C.G.A. § 41-2-5), it was an action at law and using the evidentiary standard contained in former Code 1933, 72-301 (see now O.C.G.A. § 41-3-1) did not convert the proceeding into an equitable one. Yield, Inc. v. City of Atlanta, 145 Ga. App. 172, 244 S.E.2d 32, 1978 Ga. App. LEXIS 1908, cert. dismissed, 241 Ga. 593, 247 S.E.2d 764, 1978 Ga. LEXIS 1055 (1978). Pleading and Practice It is an action at law where a party elects to proceed under this section. Yield,

Inc. v. City of Atlanta, 239 Ga. 578, 238 S.E.2d 351, 1977 Ga. LEXIS 1256 (1977), transferred, 144 Ga. App. 637, 242 S.E.2d 478, 1978 Ga. App. LEXIS 1719 (1978). Certiorari and not prohibition is the remedy by which officers should be forced to follow this section. Mayor of Montezuma v. Minor, 70 Ga. 191, 1883 Ga. LEXIS 309 (1883).

Failure to include the municipality as a party is not ground for dismissal. See Trust Co. v. Ray, 125 Ga. 485, 54 S.E. 145, 1906 Ga. LEXIS 202 (1906). This section does not confer authority to impose a fine. Healy v. City of Atlanta, 125 Ga. 736, 54 S.E. 749, 1906 Ga. LEXIS 248 (1906).

OPINIONS OF THE ATTORNEY GENERAL Determination of substandard buildings as nuisance. - If substandard buildings in a town or city are alleged to be a nuisance, this may be determined in accordance with this section; this determination must be made subject to the due process provisions of state and federal Constitutions; if a nuisance is found to exist, the court can order its

abatement; if the property owner fails to abate the nuisance, he may be bound over to a court having jurisdiction of misdemeanors; the municipality cannot itself demolish the offending buildings unless it condemns the property and compensates the owner. 1970 Op. Att’y Gen. No. U70229.

RESEARCH REFERENCES Am. Jur. 2d. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 358 et seq., 482. et seq.58 Am. Jur. 2d, Nuisances, §§ 27, 49, 324 et seq., 342 et seq. C.J.S. 62 C.J.S., Municipal Corporations, § 270. ALR. Tannery or curing of hides as a nuisance, or subject of municipal regulation, 32 A.L.R. 1358. Validity of municipal ordinance prohibiting or regulating keeping of livestock, 32 A.L.R. 1372; 40 A.L.R. 566. Right of abutting owner to complain of misuse of public park or violation of rights or easements appurtenant thereto, 60 A.L.R. 770. Right, as between state and county or municipality, to maintain action to abate a public nuisance in a street or highway, 65 A.L.R. 699.

Validity, construction, and application of statute or ordinance declaring plant or establishment which emits offensive odors to be a public nuisance, 141 A.L.R. 285. Validity of provision of statute or ordinance that requires vacation of premises which do not comply with building or sanitary regulations, upon notice to that effect, without judicial proceeding, 153 A.L.R. 849. 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. Dairy, creamery, or milk distributing plant, as nuisance, 92 A.L.R.2d 974. Statutes, ordinances, or regulations relating to private residential swimming pools, 92 A.L.R.2d 1283. Gasoline or other fuel storage tanks as nuisance, 50 A.L.R.3d 209. Recovery in trespass for injury to land caused by airborne pollutants, 2 A.L.R.4th 1054.