Enzor v. Askew

13 S.E.2d 374 | Ga. | 1941

1. A petition to enjoin erection and operation of a gasoline filling-station within an area declared to be a restricted zone, the use of the property in which was limited to residential purposes, under the authority of the act approved January 10, 1938 (Ga. L. Ex. Sess. 1937-1938, p. 414), as amended by the act approved March 24, 1939 (Ga. L. 1939, p. 406), was not subject to demurrer, on the grounds: (a) That the "petition fails to allege compliance by the Commissioner of DeKalb County, Georgia, in passing the zoning ordinance relied on, with the terms of the statute on which his authority in the premises depends;" the petition setting forth the written consent of the owners of fifty-one per cent, of the real property within the zone. (b) Because it appears that plaintiff's property is not located within the zoned area; the petition alleging that complainant's property, consisting of a house and lot, is located across the street from the said zoned area. (c) That no facts are set forth showing "any legal damage which plaintiff would suffer from the erection of such a structure;" the petition alleging that the erection of the proposed filling-station would depreciate the value of plaintiff's property in such a manner that the amount of her damages could not be ascertained, and hence would be irreparable; that the filling-station would be a source of annoyance and worry, would increase the hazard of traffic accidents, especially for children, and create in that area an unfavorable influence in which to bring up children. (d) Because the acts above referred to violate the due-process clauses in the constitution of this State, art. 1, sec. 1, par. 3 (Code, § 2-103), and in the fourteenth amendment to the constitution of the United States (Code, § 1-815).

2. The court properly overruled the demurrer to the petition. Howden v. Savannah, 172 Ga. 833 (159 S.E. 401).

Judgment affirmed. All the Justicesconcur.

No. 13615. FEBRUARY 12, 1941. Mrs. Ira Askew filed her petition against James H. Enzor, in which she made the following allegations: She is the owner of a house and lot on the north side of Memorial Drive, in said county. She is informed and believes that the defendant is the owner of or has an equitable interest in or to a lot of land on the south side of Memorial Drive. The area on the south side, which includes the defendant's property, is zoned for residential purposes only, by order of the commissioner of the county, under the authority granted to him by the act approved January 10, 1938, which provides that the commissioner may zone an area upon consent given to him by written petition of the owners of fifty-one per cent, of the real property within the area to be zoned: that such written consent was given him; that plaintiff's property is located across the street from said zoned area; that the defendant has done some grading, and has informed some of the owners of real property within the zoned area that he intends to erect a filling-station on his property; that the erection of the filling-station would depreciate the value of plaintiff's property in such a manner that the amount of her damages could not be ascertained; that the filling-station would be a source of annoyance and worry, would increase the hazard of traffic accidents, especially for children, and create an unfavorable influence for the rearing of children. She prayed that the defendant be enjoined from erecting a filling-station or any other business establishment on his property within the zoned area.

The defendant demurred to the petition on general and special grounds, and all of such grounds the court either sustained or overruled; but the defendant excepted only to the overruling of his general demurrer.