7 S.E.2d 237 | Ga. | 1940
1. Even though a given condition may constitute a public nuisance, a citizen suffering special damage has a cause of action against the person creating or maintaining the same. Savannah, Florida Western Ry. Co. v. Parish,
2. Where a municipal corporation itself is maintaining a nuisance, and a proper case exists for its abatement, equity will take jurisdiction notwithstanding the provisions of the Code, § 72-401, which prescribe the manner of abatement when the nuisance complained of shall exist in an incorporated town or city. Compare Butler v. Thomasville,
The defendant filed a general and special demurrer, which was overruled. Upon the trial there was evidence tending to show that in some places the sewer line was not under the ground and it developed leaks from which foul matter and unpleasant odors were emitted, and that particularly in dry seasons there was not water enough in the ditch or branch to carry off the raw sewage, and that its residue was scattered on the premises; that the stench therefrom was annoying and harassing, and could be detected for a considerable distance. There was evidence to the effect that in dry weather there were cesspools that bred mosquitos, and that the condition as a whole was such as to make less valuable plaintiff's property. *719
The jury rendered a verdict in favor of the plaintiff. Whereupon the court entered a judgment decreeing the acts complained of to be a continuing nuisance, and further ordering that the defendant, its agents and employees, be permanently enjoined and restrained as prayed for in the petition. A motion for new trial was overruled, and the City of Blue Ridge excepted. The foregoing statement indicates the kind of suit shown by the record, and the character of the evidence before the jury. A property owner sought the aid of a court of equity to enjoin the continuance of a nuisance, and asked that it be abated. Under the evidence, the jury were authorized to find that the condition referred to was a nuisance with special injury to the plaintiff. No new principle of law is involved, nor any novel application of any rule. It would serve no useful purpose to set out in detail the several grounds of special demurrer. They have all been examined and are without merit. The trial judge did not err in overruling the demurrers. The grounds of the amended motion complain of various extracts from the charge of the court. None of them are of such a nature as to require the grant of a new trial. The instructions given to the jury were full and fair. The evidence was sufficient to support the verdict. The judge did not abuse his discretion in refusing to grant a new trial.
Judgment affirmed. All the Justices concur.