172 Ga. 364 | Ga. | 1931
The solicitor-general of the Southwestern Circuit, on the relation of Souter and Wimbish, brought a petition in equity against Williamson, McNeil, and Ellaville Auto Company, to enjoin the use of two certain oil-tanks in Ellaville, Georgia, alleging that they constituted a public nuisance and interfered with the use of the street in which they were located; and praying that it be abated, and that defendants be enjoined from using them. The evidence showed that these oil-tanks had been erected for about ten years, and were located in a public street of Ellaville, fifteen feet from the edge of the sidewalk. In line with them were two or three trees. It was alleged by the plaintiffs that the úse of the tanks in supplying automobiles caused further obstruction of the street. There was evidence to the effect that for thirty-three years the street upon which the tanks were located had been used for travel, traffic and business, and had been recognized as a public street, and the public had free use of the street excepting
The contention of the defendants is that the trees in line with the tanks prevented them from being a nuisance, and prevented the use of the street by the public at the place where the tanks were located; and further, that the tanks had been in their present location for such a length of time as to give prescriptive rights against the city, and the situation was such as to prevent that part of the street of Ellaville in which the tanks were located .from being a part of the public street. The mere presence in the street of a city of one or more trees may not interfere with the character of the street as an avenue for public use, and the location of a gasoline tank next to the tree may yet be a nuisance. This action was brought under the Civil Code, § 5330: “Private citizens can not generally interfere to have a public nuisance enjoined, but the petition must proceed for the public on information filed by the solicitor-general of the circuit.” That an obstruction in the street is a public nuisance has been established by numerous decisions.
Under the evidence presented, none of the exceptions requires a reversal.
Judgment affirmed.