118 Ga. 100 | Ga. | 1903
Wilson brought an action against the Mayor and Council of the City of Dalton, alleging, in substánce, as follows: Petitioner with his family, consisting of a wife and several children, owns and resides upon a lot in the City of Dalton. There is a ditch within about 20 or 25 yards from the western end of petitioner’s lot, and at the time he commenced to live thereon the water in the-ditch ran freely and unobstructed along the ditch, and little or no fecal matter gathered therein. For a number of years petitioner and his family were healthy and free from malarial diseases. Several years after petitioner began to reside on the lot referred to, the-Hotel Dalton was built, and “ with the advice and consent, and, as petitioner charges and believes, with the co-operation of the Mayor and Council of the City of Dalton,” a sewer was constructed from the hotel and emptied into the ditch near his property. By reason of the construction of this sewer, and on account of the further-fact that there is not a great deal of fall to the ditch, foul and fecal matter has accumulated in the bottom of the ditch to the depth of' several inches, the result of which is to cause continued illness in petitioner’s family from malarial diseases, to render it impossible, especially at certain seasons of the year, for petitioner and his family to reside in their home, and to seriously impair the market value-
“ Municipal corporations are not liable for failure to perform, or for errors in performing, their legislative or judicial powers.” Political Code, § 748. See also Rivers v. Augusta, 65 Ga. 376; Collins v. Macon, 69 Ga. 542; Wright v. Augusta, 78 Ga. 241; Love v. Atlanta, 95 Ga. 129; Nisbet v. Atlanta, 97 Ga. 650; Wyatt v. Rome, 105 Ga. 312; Tarbutton v. Tennille, 110 Ga. 90; Gray v. Griffin, 111 Ga. 361; City Council of Augusta v. Owens, 111 Ga.
As a general rule, the courts have held that the duty imposed upon municipalities to abate nuisances existing upon private property within its limits is a duty which is judicial in its nature, and that for a failure to perform this duty, or for errors in the performance of it, the municipality is not liable in damages. Armstrong v. Brunswick, 79 Mo. 319; Davis v. Montgomery, 51 Ala. 139, s. c. 23 Am. Rep. 545. There are also a number’of rulings to the effect that where the nuisance is in a public street, the failure to abate it is a judicial rather than a ministerial act, and the city is not liable to an action for damages at the instance of one injured on account of the existence of the nuisance in a public street. Mayor v. Vandegrift, 1 Marvel (Del.), 5, s. c. 65 Am. St. Rep. 256; Kent v. Cheyenne, 2 Wyo. 6; Campbell v. Montgomery, 53 Ala. 527, s. c. 25 Am. Rep. 656. In some cases municipalities have been held liable for permitting or for failing to abate a nuisance in a public street. Little v. Madison, 42 Wis. 643, s. c. 24 Am. Rep. 435; Taylor v. Cumberland, 64 Md. 68. It has also been held that where a nuisance is adjacent to a public street and of such a character that one using the street may be injured thereby, the city is not liable for a failure to abate the same. Cain v. Kansas, 87 Mo. 103, s. c. 56 Am. Rep. 443; Butz v. Cavanaugh, 137 Mo. 503, s. c. 59 Am. St. Rep. 504; Howe v. New Orleans, 12 La. Ann. 481. In this State, where the nuisance is in or near a public street, the municipality is liable to one who uses the streets and thereby suffers special damage from the existence of the nuisance and on account of the failure of the municipality to abate the same. Parker v. Macon, 39 Ga. 725. The doctrine that the municipality will be liable for failing to abate a nuisance in' or near a public street grows out of the well-established rule in this State, that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition, and that the failure to perform this duty constitutes a breach of a ministerial duty and renders the municipality liable to one who is injured by the failure. In such a case the municipal corporation is not held liable for a failure to perform the judicial duty of abating a nuisance, but for the failure to keep its streets and sidewalks free from obstructions which are dangerous to the traveller. It has been held in Tennessee that a mu
But it seems to be well settled that there can be no action for damages where the nuisance is maintained by a private individual upon private property, and the maintenance of the nuisance in no way amounts to an obstruction of a public street or in any way imperils safety of the travelers upon the street. In such a case the remedy of the party aggrieved is by an action for damages against the one who maintains the nuisance; or in the event the party maintaining it is insolvent, or the damages are irreparable, or the nuisance is a continuing one, equity would interfere by injunction to abate the same at the instance of the person aggrieved. Butler v. Thomasville, 74 Ga. 570; Forsyth v. Atlanta, 45 Ga. 152. Upon the subject of the liability of municipal corporations generally, see Hopkins’ Pers. Inj. §469, et seq.; 2 Wood, Nuis. (3d ed.) §748 et séq.; 2 Dill Mun. Corp. (4th ed.) §949 et seq., 1048 etseq. The petition in the present case properly construed does not set forth a cause of action against the city for maintaining a nuisance. It is not claimed that the allegations are sufficient tomiake a case where the municipality is in direct control of the property upon which the alleged nuisance exists, or of the ditch or sewer which is alleged to constitute the nuisance. The allegations of the petition are to be construed most strongly against the petitioner, and under these allegations the case is to be dealt with as if the ditch were wholly on private property and owned by private individuals. It is not in terms alleged that the municipality maintains, controls, or operates the alleged nuisance. The petition at most alleges merely permissive conduct on the part of the city, and a failure and refusal to abate the alleged nuisance. It has, under its charter, the right to abate a nuisance. If the sewer and ditch are maintained as a nuisance, it is the duty of the city to abate it; but this duty is judicial and not ministerial, and for a failure to exercise this duty or
Judgment reversed.