174 Ga. 751 | Ga. | 1932
F. Q. Sammon filed his petition for injunction, in which he mates this case: Petitioner owns a residence on South Clayton Street in the City of Lawrenceville, where he has lived for some 19 years. This street is one of the main thoroughfares of said city. His home is about 60 yards west of the public square in said city, being on the east side of said street. Just south of his home, on the same side of the street and adjoining his lot, is the First Baptist Church, which has been located at this point for a long number of years. North of his property and adjoining the same is a brick building that was erected "years ago, and used as a store building for a long number of years. This building is about 35 by 110 feet, and is within 15 feet of his residence. This building has been used for the past few years as a warehouse and garage. Just north of this building and on the same side of the street is the City Drug Company, and a doctor’s office, which opens on said street. This office is not over 50 feet from said building just north of his residence. In front of his home and on the west side of said street is his funeral home, which has been maintained at this place for a number of years. It is a two-story brick building, and is the only funeral home in said city where bodies of deceased persons are carried and prepared for burial, and where funeral services are held. North of this home and about 8 feet from it on the same side of the street is located the News-Herald building, the same' being a rock building which is now owned by petitioner, and just north of that building on the same side of the street is located a
Defendant demurred upon the ground that the petition set forth
On the hearing the plaintiff introduced his verified petition, and his affidavit in which he made -substantially the same statements as in the allegations of his petition. He introduced a joint affidavit of five persons, deposing that in the event the building now in possession of defendant is converted into a mule barn, there will naturally be an accumulation of filth and manure in said stable, which will breed flies and gnats, and permeate the air in the vicinity of said stable generally and near the home of petitioner, and will greatly impair its value for residence purposes, and tend to impair the health of petitioner’s family.
Defendant introduced, beside his verified answer, his affidavit
The judge granted an interlocutory injunction as prayed, and the defendant excepted.
From the foregoing statement of facts it will appear that the residence of the plaintiff and the building of the defendant both front on South Clayton Street; that the buildings are located 15 feet apart; that the defendant is altering his building by converting the front into a store and filling-station and the rear into a sales stable, which will open on a mule-trading alley running along the north side of his lot; that the store and sales stable will be separated by a fireproof wall, which will be located 21 feet from the front of the building; that the door of his mule sales stable, fronting on said alley, will be 52 feet from the front of the building on the
A livery-stable is not a nuisance per se. 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. Standard Oil Co. v. Kahn, 165 Ga. 575, 576 (141 S. E. 643). Mere apprehension that the operation of a building as a livery-stable will amount to a nuisance, when conducted in an improper manner, will not authorize the grant of an injunction. Barton v. Rogers, 166 Ga. 802 (144 S. E. 248). A court of equity will exercise the power to restrain nuisances- in the course of erection only in cases of necessity, where the evil sought to be remedied is not merely probable, but certain; and it will be the least inclined to interfere Avith the apprehended mischief to follow from establishments, such as livery-stables, as have a tendency to promote the public convenience. In Harrison v. Brooks, 20 Ga. 537, Judge Lumpkin, who delivered the opinion of the court, said “that injunctions.will only be granted in cases of absolute necessity, in Avhich the evil sought to be prevented was not only probable, but certain and inevitable.” That ruling was followed in Bacon v. Walker, 77 Ga. 336, 338, in which this court held that nothing that is lawful in its erection can be a nuisance per se. Mere apprehension of irreparable injury from an alleged nuisance consisting of a house in the course of construction or alteration for a lawful business is not sufficient to authorize an injunction. If it be a nuisance, the consequences must be to a reasonable degree certain. Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472 (67 S. E. 1126). Mere allegations of speculative or contingent injuries, with nothing to show that they will in fact happen, do not require an injunction. A livery-stable
Under the circumstances of this case, it does not appear that the use of the rear of the building of the defendant for a mule sales stable would constitute a nuisance per se. If it is so operated as to produce a nuisance, then the plaintiff can apply to a court of equity to enjoin the operation of this sales stable in such a manner as to constitute a nuisance. A sales stable has long been in operation in the rear of plaintiff’s residence. This stable has two windows at its end, facing the plaintiff’s residence. This stable is not alleged to have proved a nuisance to the plaintiff. The sales stable which the defendant purposes to operate does not face the plaintiff’s residence. No windows in his sales stable will open towards the residence of the plaintiff. It is not alleged that the stable is to be constructed in such a manner as to be in and of itself a nuisance. Plaintiff alleges that if the defendant is’permitted to turn his building into a stable, such use will result in the accumulation of manure and filth, the creation of offensive odors, and the breeding of flies, gnats, and other poisonous insedts, which will be dangerous to the health of himself and famity. These evil consequences are conjectural and speculative. The defendant denies that his stable will be so. used as to bring about these results. In the circumstances we do not think that the plaintiff makes such a case of nuisance as will authorize a court of equity to enjoin the contemplated alteration in the building and its appropriation for a sales stable. If the defendant so uses this stable as to permit the accumulation of manure and filth) the creation of offensive odors, and breeding of flies, gnats, and other poisonous insects which may be dangerous to the health of the plaintiff and his family, then the plaintiff would be authorized to apply to a court of equity for an injunction .restraining such operation of the stable by the defendant. It is not certain that if it is so operated the plaintiff,, due to the situation of this stable to his residence, would suffer the evils and injuries which he anticipates.
Judgment reversed.