149 Ga. 379 | Ga. | 1919
Lead Opinion
Four citizens, owning homes in the main residential section of the town of Thomson, brought an action against the defendant, alleging in substance as follows:.' The defendant is preparing to erect on a lot near the respective homes of the plaintiffs a public ginnery, and a feed-crushing outfit or mill, and for the purpose of operating the same to use a steam-engine or engines and boilers; that the dust, dirt, and lint necessarily escaping from
A nuisance is anything that worketli hurt,. such inconvenience as would affect an ordinary reasonable man, or damage to another. Civil Code, § 4457. The maintenance and operation of a cotton-ginning plant in which machinery is used which separates dust and sand from the cotton and drives them with smoke into the air, and which produces noises by steam-whistles and otherwise, and where the plant is so near residences that the comfortable enjoyment thereof is interfered with, and the market value thereof depreciated for the reasons indicated, constitutes a nuisance which will be enjoined. Ponder v. Quitman Ginnery, 122 Ga. 29 (49 S. E. 746); Southern Cotton Oil Co. v. Overby, 136 Ga. 69 (70 S. E. 664); Southern Cotton Oil Co. v. Overby, 139 Ga. 209 (76 S. E. 999); Tate v. Mull, 147 Ga. 195 (93 S. E. 212). A public nuisance may be enjoined at the suit of individuals, when it appears that they will suffer special damage not shared in by the public. Civil Code, § 4455; City of Sylvester v. Tison, 133 Ga. 518 (66 S. E. 246), and citations.
The allegations of the petition as well as those of the amendment thereto, which are to be taken as true as against a general demurrer, are sufficient to show that the erection and operation of the ginnery and mill constitute a nuisance which may be enjoined at the instance of the plaintiffs. Therefore the general demurrer was properly overruled.
While distinct and separate claims of different persons against another can not be joined in the same action (Civil Code, § 5515), yet, where there is one coffimon right to be established by several persons against another, they may join in the same suit against him, and equity will determine the whole matter in such action. Civil Code, § 5419. The several plaintiffs need not have an interest in all matters embraced in the suit; it is sufficient if each of them has an interest in some matter common to all; and where there is one ‘common right sought to be established by several against
The special demurrers on the ground that the petition was not sufficiently definite in setting forth wherein the erection and operation of the ginnery and mill would constitute a nuisance were not good. Judgment affirmed.
Concurrence in Part
dissenting in part. All persons whose property is affected by a nuisance, though they own the property in severalty and not jointly, may join in an action to abate the nuisance. The nuisance is a common injury to all of them, though the damages to each resulting from it arc separate and distinct. The relief granted must be such as is common to all the plaintiffs. Therefore, in such action, the plaintiffs can not have judgments for the damages done to the property of each. The precise question has been ruled in Grant v. Schmidt, 22 Minn. 1, Murray v. Hay, 1 Barb. Ch. 59, 65, and City of Paducah v. Allen, 20 Ky. Law R. 1342 (49 S. W. 343). The insertion of the prayer for the damages which the plaintiffs have respectively sustained by the alleged nuisance renders the petition multifarious. Neither the general principles of equity nor the uniform procedure act of this State authorize a court of equity to grant such relief. The prayer for the damages which the plaintiffs respectively have sustained by reason df the alleged nuisance should have been stricken.