78 Ga. 271 | Ga. | 1887
The plaintiff exhibited her bill in equity against the defendant, in which she alleged that the defendant, without authority of law, had laid down certain side-tracks on and along Thomas street, now called Ninth street, from Broad,, crossing over Front street, and used and occupied the same for their engines and cars; that she was the owner of a certain house and lot that she used as her residence, on the corner of Front and Thomas streets, and that by the noises and smoke of the engines of the defendant standing on the side-track, her property was damaged, in that, she was prevented from the free use of the same by the noises and smoke aforesaid; and she prayed that said defendant be enjoined from using said side-tracks in the manner complained of.
This court held, in the case of the Mayor and Council of Columbus vs. Jaques, and the same vs. Oliver, solicitor-general, that an obstruction to a public street in the city is a public nuisance, and that a court of equity has jurisdiction, and will, on a proper case made for injunction, restrain a public nuisance, and that under these several acts of the legislature which have been alluded to, the Mayor and Council of the city of Columbus had no power to erect, or cause to be erected, a market-house in the streets of the city. The fee to the streets is in the State, and the use in the public, and the city authorities, under the several acts of the legislature, have no power to authorize any obstruction to be placed in said streets. To authorize the act complained of would require legislative interference.
But the defendant in error contends that, under the act
So we think that the court was wrong in refusing this injunction, and the judgment is reversed.