188 Ga. 498 | Ga. | 1939
Lead Opinion
The assignments of error relate to the overruling of a general demurrer to the petition, and to the grant of an interlocutory injunction. It is to be inferred from statements contained in the bill of exceptions that on the hearing testimony was taken; but no evidence was brought to this court. We must therefore act on the assumption that there was evidence before the judge which supported the allegations of the petition; and the only question presented for our decision in the second exception is whether, conceding that the petitioners proved their case, they were entitled to the interlocutory injunction which was granted. The first exception raises a kindred issue, to wit, should the petition have been dismissed on general demurrer ?
A filling-station is not per se a nuisance. Standard Oil Co. v. Kahn, 165 Ga. 575 (141 S. E. 643); Howell v. Board of Commissioners of Quitman, 169 Ga. 74 (3) (149 S. E. 779); City of Hawkinsville v. Williams, 185 Ga. 396 (195 S. E. 162), and cit. Nor are garages for repairing and vulcanizing automobile tires. Morrow v. Atlanta, 162 Ga. 228 (133 S. E. 345). A nuisance per se is an act, occupation, or structure which is a nuisance at all times and under all circumstances, regardless of location or surroundings. Simpson v. DuPont Powder Co., 143 Ga. 465 (85 S. E. 344, L. R. A. 1915E, 430). The erection and operation of gasoline filling-stations are not nuisances because they are erected in residential sections and in close proximity to residences. Standard Oil Co. v. Kahn, City of Hawkinsville v. Williams, supra. Where the business alleged to be a nuisance is lawful, and can be carried on without the injuries complained of, the defendant should not be restrained from carrying it on at all, but should be restrained from so carrying it on as to be injurious and offensive, leaving him the right to carry it on in a proper manner. Georgia RA. &c. Co. v. Maddox, 116 Ga. 64 (42 S. E. 315); Pig’n Whistle Sandwich Shops Inc. v. Keith, 167 Ga. 735 (146 S. E. 455); Warren Co. v. Dickson, 185 Ga. 481, 484 (195 S. E. 568). In Holman
We are of the opinion that so much of the interlocutory order as prohibited the defendant from working on cars, trucks, and tires between the hours of 11 p. m. and 6 a. m., except on .Saturday nights when the hours are 12 to 6 a. m., was erroneous. Working on and repairing automobiles, trucks, and tires is a lawful business, and none the less so because conducted between the hours of 11 p. m. and 6 a. m. Being a legitimate business in which the defendants were engaged, the court erred in enjoining them from using the property between the specified hours for the purposes stated, or from engaging in the work indicated above. Morrow v. Atlanta, supra. Nothing contrary to what is here ruled was decided in Hill v. McBurney Oil & Fertilizer Co., 112 Ga. 788, 793 (38 S. E. 42, 52 L. R. A. 398), Warren Co. v. Dickson, supra, or Poole v. Arnold, 187 Ga. 734 (2 S. E. 2d 83). If anything in
In Warren Co. v. Dickson, supra, this court had under consideration a demurrer to a petition in a suit for injunction against the operation of a baseball park at nights and Sundays, and ruled that
Blackstone’s definition of a nuisance, “anything that worketh hurt, inconvenience, or damage” (2 Blackstone’s Com. 216), has throughout the years' been subjected to many qualifications and limitations. For instance, in City of Quitman v. Underwood, 148 Ga. 152 (96 S. E. 178), it was said: “AVhere the business itself is legal, it only becomes a nuisance when conducted in an illegal manner, to the hurt, inconvenience, or damage of another.” In 46 C. J. 645, the statement is made that “In legal phraseology, the term ‘nuisance’ is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property,” etc. On page 657 a long list of authorities is cited in support of the text that “One who uses his property or conducts his business in a lawful and proper manner does not create an actionable nuisance, against which relief may be had, merely because the particular use or conduct which he chooses to make of it may cause some inconvenience or annoyance in the neighborhood.” There are many noises encountered by one residing in a city that are absent in the rural sections. There are annoyances in the down-town part which are not found in the suburbs. One who chooses to reside in thickly settled area must not expect the quietude of the woods. From the decisions collected in the notes, the authors of Corpus Juris deduce the rule that “A person who lives in a city, town, or village must of necessity submit himself to the consequences and obligations of the occupations which may be carried on in his immediate neighborhood, which are necessary for trade and commerce, and also for the enjoyment of property and the benefit of the inhabitants of the place; "and matters which, although in themselves annoying, are in the nature of ordinary incidents of city or village life can not be com
In Bacon v. Walker, 77 Ga. 336, 338, it was said: “It is true that nobody would be pleased at the erection of a jail in the vicinity of his residence, but it must be built somewhere. It is a public necessity. It is authorized by law. In no sense, or rather in no legal sense, is it a nuisance. Nothing that is legal in its erection can be a nuisance per se; much less can that which public necessity demands be one.” In Austin v. Augusta Terminal Co., supra, may be found this statement: “If a great manufacturing plant had been erected on the adjoining lot, the market value of plaintiff’s house might have been greatly injured, no matter how silent the operations of the mill. Properly conducted, decently appointed, and orderly managed stores, shops, factories, and business houses, erected in close proximity to residential quarters, frequently cause great depreciation in values; in the popular sense they cause damage, but in such cases the annoyances, the inconveniences occasioning the loss in value, are not actionable, because they arise from lawful uses. The owners of these establishments are as much entitled to the use and enjoyment of their property as is the owner of the residence property reduced in value by their presence.” We can not shut our eyes to the fact that hundreds upon hundreds of motor trucks, and thousands upon thousands of automobiles, travel over highways day and night, or profess ignorance of the fact that accidents will happen to the tires in the night as well as in the daytime. Garages to repair and replace these are not only a great convenience to the traveling public, but a practical necessity. That
Standard Oil Co. v. Kahn, supra, involved a garage near the residence of the complainant. It was there alleged: “The homes of petitioner and others will be depreciated by the building of this service-station, and the value and attractiveness thereof will be greatly reduced. It will create a noisy and undesirable center, and will cause all these residences to be undesirable for residential purposes. At said station gasoline and oil will be sold to automobiles and trucks at all hours of the day and night. These sales will be accompanied by noisome, offensive, and disagreeable odors, and by many disagreeable noises which continually go on around and near filling-stations at all hours of the day and night, including the noises incident to changing the tires and rims of automobiles and trucks.” Also: “The erection and operation of said filling-station will create so many noises and disturbances as to deprive him and his family of sleep, and thus will result in endangering their health, besides destroying their peace and happiness, and it will result in a multiplicity of suits to prevent the operation of the same. The noises referred to are loud, roaring noises, made by the exhaust and back-fire of automobile and truck engines produced by the explosion of gasoline therein, and the loud roaring noises of automobiles and trucks going into and stopping at gasoline filling-stations, and the noises produced by changing tires, by beating and striking the same with large hammers and other irons, and also the usual loud talking and sometimes hilarious laughter of
In the Kahn case the grant of an interlocutory injunction preventing the erection of the filling-station was reversed.. Wooten v. Smith, 167 Ga. 256 (145 S. E. 446), was a case similar to the Kahn ease. There a service-station was about to be erected near Smith’s residence. The petition contained the allegation that “the erection and running of a service-station on same for the selling of gasoline, oil, washing ears, and mending tires, and such garage work, escaping odors from gasoline, oil, rubber, and noise and crowds around same is a nuisance and renders complainant’s residence unfit for habitation; and this complaint is brought to enjoin said nuisance.” It was there held that the judge erred in enjoining the defendant from operating the station. In the opinion, referring to the decision in the Kahn case, Bussell, C. J., observed:
On the question whether the business of conducting an automobile garage, or a supply station for automobiles, where tires are repaired, is a nuisance per se, when conducted in a residential district, the authorities in other jurisdictions are in conflict, though the weight of authority is said to be against holding such business to be a nuisance, even when conducted in a residential section. “The business of conducting an automobile garage, or a supply station for automobiles, even in a residential district, is not generally regarded by the courts as a nuisance per se, and on the contrary is considered a legitimate and necessary industry.” 7 Blashfield's Cyclopedia of Automobile Law, § 4881 et seq., where many cases are cited. See also annotations to the reports of the cases of National Refining Co. v. Batte, in 35 A. L. R. 91, 95; George v. Goodavick, in 50 A. L. R. 105, 107. Typical of those holding that such a business thus located is a legitimate and necessary industry, and its necessary noises must be endured, are Brown v. Easterday, 110 Neb. 729 (194 N. W. 798); Haynes v. Carolina Cadillac Co., 176 N. C. 350 (97 S. E. 162); Gillette v. Tyson, 219 Ala. 511 (122 So. 830); Nevins v. McGavock, 214 Ala. 93 (106 So. 597); Texas Co. v. Brandt, 79 Okla. 97 (191 Pac. 166); True v. McAlpine, 81 N. H. 314 (125 Atl. 680); Sherman v. Livingstone, 128 N. Y. Supp. 581; Brown v. Powell, 92 Ind. 467 (176 N. E. 241). Among those to the contrary are Ladner v. Siegel, 296 Pa. 579 (146 Atl. 710); Huddleston v. Burnett, 172 Ark. 216 (287 S. W. 1013); Lewis v. Berney (Tex. Civ. App.), 230 S. W. 246. We believe the former the sounder view, and more in harmony with prior rulings of our court on kindred issues. “In this era of good roads, with the constant improvement of our highways, the use of the automobile as a means of transportation is bound to increase accordingly. The mechanism of motor cars is complicated, repairs must be made by skilled mechanics, and cars must
Was it erroneous not to dismiss the 'action on general demurrer? “A general demurrer to a petition will not be sustained if the facts entitle the plaintiff to any of the substantial relief prayed.” Shingler v. Shingler, 184 Ga. 671, 672 (192 S. E. 824), and cit. The petition in one place refers to the excessive noises, and contains this further clause: “But since the petitioners have remonstrated as to the excessive and ■ unreasonable noises in the work on the tires and trucks stated in the preceding paragraph, other disturbances and noises have arisen in connection with this service of oil and gas that are unnecessary and unreasonable, and constitute a nuisance in themselves as to adjoining property owners and especially your petitioners.” Also there is an allegation that '“The defendant can service these cars with gas, oil, air, and water without noise and without the objectionable features herein shown; but he is not doing so. As to this particular service the petitioners do not object, but do object to the manner in which this is being carried on, and the attendant disturbing features that are unnecessary and unreasonable.” Among the prayers was one “That the defendants be restrained from allowing employees or patrons making of all noises in the operation of the business that is permitted beyond reason and necessary, having due regard to the convenience of persons in adjacent dwellings who may be asleep or trying to sleep between said hours.” While the petitioners are not entitled to all the relief prayed for, or to an injunction against the operation of the defendant’s business when conducted in a normal manner, accompanied by no more noises than are reasonably necessary, yet they would be entitled to injunctive relief against unusual and unnecessary noises, provided the proof shows that the operation of the business is attended with such unusual and unnecessary noises, as distinguished from those disturbances and noises which are normal and of the character usually attendant upon the operation of the business of operating a filling-station and garage for repairs. It was not erroneous to refuse to dismiss the action on general demurrer.
Judgment affirmed in part and reversed in part.
Concurrence Opinion
concurring specially. On' proper construction of
Dissenting Opinion
dissenting. . While I do not agree to the doe