Opinion
19717.
ARGUED MAY 15, 1957.
DECIDED JUNE 11, 1957.
Petition for injunction. Before Judge Renfroe. Bulloch Superior Court. March 27, 1957.
Neville Neville, Cohen Anderson, for plaintiff in error.
Fred T. Lanier, Robert S. Lanier, contra.
The facts alleged in the present case did not state a cause for equitable relief, and it was error to overrule the defendant's general demurrers.
ARGUED MAY 15, 1957 — DECIDED JUNE 11, 1957.
Leodel Coleman and 24 other persons filed an equitable petition against J. G. Attaway, trading as the J. G. Attaway Construction Company. In substance, it was alleged: The defendant has recently constructed and begun operating an asphalt mixing plant near the homes and premises of the petitioners. The plant employs a method of crushing rock and gravel into fine dust which is mixed with asphalt. The movement of the equipment used creates loud, disturbing, and constant noises. Oily smoke, dust, dirt, and fumes are expelled into the air in great quantities. This contaminated air is blown into the dwellings and premises of the petitioners, whose homes are located in a residential section, and were occupied by the petitioners prior to the erection of the asphalt mixing plant by the defendant. The plant is operated at irregular hours, sometimes at night, and it constitutes a nuisance, and is a continuing nuisance. On July 6, 1956, the petitioners filed with the Mayor and City Council of Statesboro a petition to have the nuisance abated. After hearing, the mayor and council, on August 21, 1956, signed an order declaring the plant to be a nuisance, and ordering the defendant to abate it. The defendant has never abated the nuisance complained of, and on January 29, 1957, the mayor and council, without notice and without evidence submitted, and without the petitioners being given an opportunity to be heard, revoked the order declaring the asphalt mixing plant to be a nuisance. By the second order the mayor and council have disqualified themselves from further consideration of the matter. The petitioners have no adequate remedy at law.
Copies of both orders are attached to the petition as exhibits. In the second order it is declared that the nuisance set forth in the former order has been abated, but that jurisdiction is retained for consideration of future complaints.
The prayers were for process, temporary and permanent injunction against the operation of the asphalt mixing plant, and other relief.
The defendant's general demurrers were overruled, and his special demurrers, except one ground not insisted upon, were likewise overruled. The exception is to the judgment overruling the general and special demurrers.
The parties will be referred to as they appeared in the trial court.
The petitioners insist that they have alleged facts and circumstances to show that only a court of equity can grant full and adequate relief. The rule is well established that where special facts are alleged showing that the remedy at law is inadequate, resort may be had to a court of equity. Broomhead v. Grant, 83 Ga. 451 ( 10 S.E. 116); Town of Rentz v. Roach, 154 Ga. 491 ( 115 S.E. 94); Poultryland, Inc. v. Anderson, 200 Ga. 549 ( 37 S.E.2d 785); Thompson v. Hutchins, 207 Ga. 226 ( 60 S.E.2d 455).
Whether or not the petitioners might have proceeded in a court of equity in the first instance is not now before this court for determination. They elected to avail themselves of the remedy provided by law. Code § 72-401. A decision by the governing body of a municipality as to whether alleged acts constitute a nuisance, made after trial in which the parties at interest have participated, is a judicial determination, from which certiorari will lie. Even though equity may afford the injured persons a more adequate and complete remedy than a proceeding at law, yet where such persons have elected to procure a decision by the governing body of a municipality, they can not, during the pendency of the legal proceeding, resort to a court of equity, but must review any ruling adverse to their contentions by writ of certiorari. Mayor c. of Montezuma v. Minor, 70 Ga. 191; Jackson v. Calhoun, 156 Ga. 756, 760 ( 120 S.E. 114); Calhoun v. Gulf Oil Corporation, 189 Ga. 414, 418 ( 5 S.E.2d 902); Washington Seminary v. Bass, 192 Ga. 808, 815 ( 16 S.E.2d 565); City of Cedartown v. Pickett, 193 Ga. 840 ( 20 S.E.2d 263); Coffey v. City of Marietta, 212 Ga. 189 ( 91 S.E.2d 482).
Certiorari was a proper remedy to review the declaration by the municipal authorities that the nuisance described in their former order "has been abated." In so far as the petitioners may seek to rely on their allegation that the second order was entered without notice to them, they fail to show injury, since the order complained of provides that, "jurisdiction of said matter is retained if it should appear by future complaints of the parties affected that the nuisance has been renewed." Clearly the petitioners have not been denied any right to complain to the municipal authorities, and they show no right to abandon their legal proceeding, to seek relief in a court of equity.
Judgment reversed. All the Justices concur.