44 S.E.2d 126 | Ga. Ct. App. | 1947
The petition for damages for the maintenance and operation of a nuisance stated a cause of action and the general demurrer thereto was properly overruled.
The petition alleged further: that the plaintiff was in ill health; that his only income was derived from subrenting part of his house; that the startling and loud noise created by the discharge of the steam pipes of the defendants' plant had caused the plaintiff to become extremely nervous; that his home would be uninhabitable if steps were not taken to keep out the smoke, soot, ashes and trash blown into the air by the defendants' plant, and that it is necessary for the plaintiff to keep the windows and doors of his home tightly closed in summer and winter with the consequent loss of fresh air so essential to his health; that as a result of these conditions the plaintiff feels despondent and depressed; that the smoke makes his eyes constantly burn and hurt; that his tenants are constantly beseeching the plaintiff for relief from the nuisance created by the defendants' establishment, and are constantly threatening to move unless something is done about it, and this *569 keeps the plaintiff constantly upset, and adds greatly to his worry and nervousness; that the plaintiff's health has steadily grown worse over the past year as a result of these conditions, and that by reason of this detriment to his health the plaintiff has been damaged in the sum of $2000; that the conditions thus created by the defendants' plant have denied the plaintiff the free use of his front and back porches and yards, and have damaged him to the extent of $180 per year; that the outside of his house has been rendered in need of cleaning and painting to his damage in the sum of $150; and that the interior of his house has been damaged to the extent of $100 by the settling on the floors, doors, wood-work, and walls of the soot and dirt thrown out by defendants' plant.
The plaintiff further alleged that the nuisance thus created was abatable, and that although the defendants had been notified of it, they had refused to take steps to abate it, and the plaintiff asked additional damages of $500 "for the wanton and wilful misconduct of the defendants in maintaining this nuisance, and to deter them from continuing the same, and as compensation for his wounded feelings." The defendants demurred generally to the petition on the ground that no cause of action was set out, and upon a hearing the demurrer was overruled. The exception here is to that ruling.
"A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise 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 ordinary 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." § 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." § 72-104. It has been held that a nuisance at law or a nuisance per se is an act, *570
occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.Simpson v. DuPont Powder Co.,
A business otherwise lawful may become a nuisance in fact, or a nuisance per accidens, by reason of improper operation, or by reason of its location. Poultryland Inc. v. Anderson, supra;Asphalt Products Co. v. Marable,
We think that the instant case is controlled adversely to the contentions of the plaintiff in error by the holdings in the numerous cases cited, and particularly the recent case of SamFinley Inc. v. Russell, supra. Applying the tests set forth in the cases cited herein, the petition set forth a cause of action, and the court did not err in overruling the demurrer of the defendant thereto.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.