Rushing v. Thigpen, 200 Ga. 313

Rushing v. Thigpen

200 Ga. 313 | Ga. | 1946

1. A nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Simpson v. DuPont Powder Co., 143 Ga. 465, 466 (85 S.E. 344, L.R.A. 1915E, 430); Wilson v. Evans Hotel Co., 188 Ga. 498, 500 (4 S.E.2d 155, 124 A.L.R. 373).

2. This court has several times held that garages and filling stations in a residence neighborhood do not constitute a nuisance per se. Standard Oil Co. v. Kahn, 165 Ga. 575 (141 S.E. 643); City of Hawkinsville v. Williams, 185 Ga. 396, 399 (195 S.E. 162); Morrow v. Atlanta, 162 Ga. 228 (2) (133 S.E. 345); and see citations in Wilson v. Evans Hotel Co., supra.

(a) The writer of this syllabus entertained views contrary to those just expressed, as evidenced by his dissent in the Wilson case (188 Ga. 510), and in Grubbs v. Wooten, 189 Ga. 390, 401 (5 S.E.2d 874), but yields as he did in the Wilson case to the repeated adjudications of this court to the contrary, with respect to the preceding holding.

3. If, after the building is completed, the business should be operated in an unlawful and unreasonable manner, resulting in excessive, unreasonable, and unnecessary injury to a contiguous owner, such owner would not be without his remedy under the ruling in the Wilson case, above cited.

4. In accordance with the foregoing principles, the court did not err in dismissing the petition praying for an injunction against the construction of a filling station and garage in a residence neighborhood.

Judgment affirmed. All the Justices concur, except Wyatt, J., who dissents.

No. 15375. FEBRUARY 19, 1946. Mrs. Nellie Rushing filed a petition in the Superior Court of Evans County against J. A. Thigpen, alleging that the defendant intended to erect a building adjacent to her residence property, which she believed would be used as a garage, salesroom, and repair shop, and in connection therewith would conduct a filling station, which would cause her residence to become undesirable as a home, and prayed for a restraining order and permanent injunction. The defendant demurred generally to the petition, and the plaintiff by amendment alleged further that poisonous fumes would seep into her dwelling, making living therein dangerous to health; that dirty water, oil, and smoke would flow upon her property, causing the same to become uninhabitable; that the sidewalk and street in front of her dwelling would become unsafe and unsightly, and damage which she could not estimate would be occasioned *Page 314 to her dwelling; that the insurance premium on her property would be increased; and that the dwelling could not be rented because tenants would not occupy it under such conditions. The defendant renewed his general demurrer to the petition as amended, which demurrer was sustained. The case is before this court on exceptions to the order of the lower court sustaining the general demurrer to the petition as amended.