109 Ga. 28 | Ga. | 1899
The plaintiff instituted an action to recover damages against the City of Elberton. He alleged, that he was the owner of a hotel building in said city, and eight brick storehouses adjoining and opposite his hotel; that he expended a large sum of money in the erection of said buildings, which before the damage complained of were worth a large amount of money; that he and his family reside in the hotel, and that the same was made comfortable and pleasant for his family as well as his guests; that during the year 1897 the City of Elberton, without the consent of petitioner and against his protest, erected within one hundred feet of his property a building known as the city prison, which is a brick structure containing offices for the city and a number of prison cells and lockups 'in which violators of the city laws are confined ; that these are frequently drunk, boisterous, profane, obscene, and offensive, and that frequently crowds of objectionable persons are gathered around the city prison to the annoyance of the neighborhood; that the building is not provided with waterworks or sewers, and that slops and filth are carried therefrom daily in full view of the public; that the prison emits foul air and unwholesome stenches, and the inmates make discordant
It is claimed by counsel for the plaintiff, that since the adoption of the constitution of 1877 a municipal corporation is liable to an individual for damages to private property, to the same extent and under the same circumstances that it is liable for property taken for public purposes ; and we understand the present action is based on the provision of that constitution which declares that private property shall not be taken
The simple erection of a necessary prison building can not, without more, so injure adjacent property as to entitle the owner to have damages for such erection. No one is so hindered in the use of his property and so restricted as to the character of buildings he shall put upon it, as to make it necessary to consult adjacent lot owners in reference to the improvements to be made. The lot being his own property, the owner may put it to such use as he sees proper, provided the buildings and improvements made by him do not infringe the legal right of his neighbor to the similar enjoyment of his own property. A log house on a fashionable street may be built alongside of a palace, and by its erection the value of the latter may be depreciated, but that depreciation is damnum absque injuria. The owner of the lot has as much right to erect the hut as the other has to build his palace — no more, no less; but if the hut or the palace be so used as to interfere in the lawful enjoyment of his property by the other, there the damage with a right to compensation exists. If noxious gases from a business carried on in either befoul the air which the other is entitled to have without it — if the flow of poisonous fluids from a manufactory carried on at either place sterilizes the land of the other — if offensive smells emanate from the one and affect the health of those dwelling in the other, then there is a cause of injury which the law will redress, because the use which brings about any of these things is an infringement on the right of the other; but none can be allowed for the character of the building. The municipal authorities of the
In the case of Bacon v. Walker, 77 Ga. 338, this court, Chief Justice Jackson delivering the opinion, said: “It is true that nobody would be pleased at the erection of a jail in the vicinity of his residence, but it must be built somewhere. It is a public necessity. It is authorized by law. In no sense, or rather in no legal sense, is it a nuisance. Nothing that is legal in its erection can be a nuisance per se; much less can that which public necessity demands be one.” It “must be built in some part of the city and near to somebody’s house . . ; and equity will not stop the public works because of such damage.” And in the case of Pause v. Atlanta, 98 Ga. 103, this court through Atkinson, J., said: “A distinction should be borne in mind between those cases where one seeks to recover because of the appropriation by the public to the public use of private property, and damages to one’s property sustained in consequence of the construction of such public improvement, and that other class of cases in which, though one’s property be neither appropriated nor damaged, yet in consequence of the construction of such improvement one suffers damage resulting from personal inconvenience, and consequent damage in the conduct of one’s business. In the former cases the right of compensation is a matter of principle; the amount of damage, a mere matter of degree. However slight or however great one’s damage may be, he is nevertheless entitled to compensation. In the latter class of cases some
Affirmed.