Town of Lumbber City v. Phillips, No. 9027

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No. 9027 | Ga. | Jun 17, 1932

Gilbert, J.

Suit was instituted by D. W. Phillips and Mrs. Annie Ryals against the Town of Lumber City, seeking injunction to prevent the maintenance of a nuisance consisting of an open sewer or ditch running by and through real estate owned by petitioners, and from discharging into this ditch sewage, filth, and water; and they prayed that the same be adjudged to be a continuing nuisance and that it be abated. They alleged that obnoxious gases, fumes, and odors were emitted from the ditch; that it was a breeding-place for mosquitoes and malarial germs, and was unhealthy, unsanitary, and unsightly; that they had, without avail, applied to the governing authorities of the city for abatement of the nuisance; that petitioners were without adequate remedy at law, and were being irreparably injured and damaged. The city in its answer admitted the use and maintenance of the ditch, but denied other material averments of the petition; and set up that the ditch had been in use for a period of about fifty years; that Phillips acquired his title on December 7, 1920, and Mrs. Ryals acquired *919hers on September 21, 1927; that neither of them had suffered any loss or damage by reason of the ditch, because it was there when they bought their property and for many years prior thereto; and that the duty of keeping the ditch open and in repair was upon the plaintiffs in this case. The jury trying the case found in favor of the plaintiffs, and that the nuisance be abated. Decree in accordance, with the verdict was entered. The motion of the defendant for a new trial was overruled, and it excepted. Held, that the verdict was authorized by the evidence. None of the grounds of the motion for new trial show cause for' reversal.

Judgment affirmed.

Beck, P. J., and Hill, J., concur. Russell, O. J., and Atkinson, J., dissent.

The following order was passed by the Supreme Court and by the Court of Appeals of Georgia on June 13, 1932.

It is ordered that the dockets of this court for the March and October terms close respectively on the nineteenth days of June and December, at noon. If the nineteenth day of either of these months shall fall on Sunday, the docket shall close at noon of the following day.