16 S.E.2d 771 | Ga. Ct. App. | 1941
The court did not err in overruling the general demurrer to the petition as amended.
A substantial statement of the petition as amended follows: 1. The defendant, a Georgia corporation, has injured and damaged petitioners by the maintenance of a nuisance. "2. That petitioners own and reside in a dwelling-house located in the Town of Gray . ., and in a residential community, and have been so residing several years, and said dwelling is of the value of $3500. 3. That *878 on or about April 15, 1940, defendant did erect and establish a plant for mixing asphalt, sand, tar, and other such ingredients used in road building within 75 feet of the said house in the said residential community, and that the machinery of said plant is operated by steam generated by burning coal and such substances. 4. That defendant has operated said plant practically every day since its erection and during the operation a dense smoke has been given off containing tar and asphalt fumes, cinders, fine dust and such, and the smoke thus described has streamed into and on petitioners' house, greatly to their hurt, vexation and injury, and causing them to do a great amount of extra work in sweeping and dusting and trying to keep their house clean and in order, thereby damaging them in the sum of . . $50 per month, aggregating . . $250. 5. That said smoke was offensive in odor, polluted the atmosphere, and that it, together with the constant roaring noise accompanying the operation of the machinery, has impaired the health of petitioners, making them nervous, injuring their throats and nostrils, and causing them to cough and sneeze incessantly, and that, further, the smoke has damaged their property consisting of the said house, furnishings, shrubbery, and such. 6. That said smoke has blown over and in the house, coating and staining and discoloring it with soot, cinders, tar, asphalt fumes and such, and that the furniture, curtains, draperies, rugs, and flooring, table covers and all other such furnishings of the home have been stained, discolored, made dirty and dingy by reason of said smoke settling and blowing over this property. 7. Petitioners show that the paint, both inside and out of said house, has been stained, changed from its original coloring to that of a dirty and dingy appearance by reason of the dust, tar fumes, smoke and cinders settling on said paint, and that petitioners have been damaged in the sum of $125 thereby. Petitioners further show that the damage done to curtains, draperies, furniture, hardwood floors. bedding and clothing amounted to $125, said damage consisting in soiling, staining, and discoloring said material by the smoke, dust and fumes coming from the machinery. 8. Petitioners . . have been injured and damaged in the sum of . . $500 by reason of the facts hereinbefore set out."
"A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise *879
be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinarily reasonable man." Code, § 72-101. "Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals." Code, § 72-102. "A private nuisance may injure either the person or property, or both, and in either case a right of action accrues to the person injured or damaged." Code, § 72-104. "`A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.'. . `By far the larger class of nuisances is that which may be termed nuisances in fact or nuisances per accidens, and consists of those acts, occupations, or structures which are not nuisances per se but may become nuisances by reason of the circumstances or the location and surroundings.'" Simpson v.DuPont Powder Co.,
In the foregoing case, the court cited 46 C. J. 666 [ § 32], which reads as follows: "The locality is to be considered in determining whether there is a nuisance, although it is not conclusive, but is to be considered in connection with all circumstances of the case. *880
There are some nuisances in which the act complained of may be wrongful, but constitutes a nuisance only by reason of its location, and there may be an act or condition that is rightful, or even necessary, but may become a nuisance by reason of its location. What might be a nuisance in one locality might not be so in another. A business which might be perfectly proper in a business or manufacturing neighborhood may be a nuisance when carried on in a residential district; and conversely a business which with its incidents might well be considered a nuisance in a residential portion of a city or village may be proof against complaint when conducted in a business or manufacturing locality." One of the numerous authorities cited to sustain the above statement that "a business which might be perfectly proper in a business or manufacturing neighborhood may be a nuisance when carried on in a residential district," is Coker v.Birge,
"The employment by the owner of a ginning plant of machinery which separates dust and sand from cotton and expels the particles of dust and sand into the air in large volumes, causing the same to be blown into the dwelling-house of an adjacent proprietor, to his great discomfort and injury, is an invasion of his property rights, for which an action for damages will lie."Ponder v. Quitman Ginnery,
"A business may be a nuisance either by reason of its location or by reason of the improper or negligent manner in which it is conducted." Dauberman v. Grant,
Under the authorities cited we are satisfied that the petition in the instant case states a cause of action that is not subject to general demurrer. The petition as amended substantially alleges that petitioners owned and occupied a dwelling-house located in a residential section of the Town of Grey, and that they had been residing there several years before the defendant erected and began to operate its plant within seventy-five feet of said house, and that practically every day since its erection the plant emitted a dense, ill-smelling smoke containing tar and asphalt fumes, cinders and fine dust that streamed into petitioners' home, damaging the house and furnishings in specified ways and causing great annoyance to petitioners and impairing their health.
The court having "passed" the special demurrers, we are not here concerned with misjoinder of parties plaintiff or causes of action, *883 or with any other thing that can be raised only by special demurrer. We hold that the court did not err in overruling the general demurrer to the petition as amended.
Judgment affirmed. MacIntyre and Gardner, JJ., concur.