Opinion
18536.
ARGUED APRIL 13, 1954.
DECIDED MAY 11, 1954.
Injunction. Before Judge Pharr. Fulton Superior Court. January 22, 1954.
Joseph J. Gaines, for plaintiff in error.
Moise, Post Gardner, William H. Davidson, Jr., contra.
1. While a gas-distribution station constructed by a public-service common carrier engaged in interstate commerce for the purpose of distributing natural gas and operating under a certificate of public convenience and necessity from the Federal Power Commission, is not a nuisance per se, nevertheless, it may become such by the negligent manner of its operation, and under the pleadings and evidence in this case a judgment in favor of the defendant, denying the injunctive relief sought, was not demanded.
2. The trial judge who heard the issues involved in the present case, having stated in his judgment, "after consideration of the evidence and after personally visiting the area in the vicinity of the plant of the defendant, it is ordered that interlocutory injunction be and it is hereby denied," and it thus appearing that the judge's personal visitation of the area in the vicinity of the defendant's plant was made an integral part of his judgment, without the consent of the parties or their counsel, the judgment is reversed, with direction that the case be heard upon the evidence which may be introduced, unless visitation by the judge as a part of the proceedings be had with the consent of both parties.
ARGUED APRIL 13, 1954 — DECIDED MAY 11, 1954.
Isham H. Brown filed a petition in Fulton Superior Court against Transcontinental Gas Pipe Line Corporation, which alleged substantially the following: Petitioner is the owner of a described house and lot in a residential area of the City of Bowman, Elbert County, Georgia, which he occupies as his home with his wife and children. In October and November, 1951, the defendant constructed a natural-gas pipe line on premises adjacent to petitioner's residence, and in connection therewith erected a gas-pumping and distribution station approximately 125 yards from petitioner's dwelling house. Since November, 1951, the defendant has continually allowed large quantities of an odorizing gas, which is mixed by the defendant with the natural gas, to escape over the dwelling house of petitioner. The odorizing gas has floated over into the air surrounding petitioner's house and lot, and has continuously polluted the air. It has an obnoxious, unpleasant, and objectionable odor and penetrates throughout petitioner's dwelling house. On different occasions it nauseated him when he sat down to his meals and caused him to suffer headaches, and is injurious to his health. It has caused much discomfort to him and members of his family, and the continual discharge of the odorizing gas constitutes a continuing nuisance. The defendant has been negligent in failing to seal up the leaks around the pipes from which the gas is escaping. On three separate occasions petitioner informed the defendant and its agents of the nuisance, and requested that it take measures to correct it. The stench of the odorizing gas was frequently so annoying and discomforting to petitioner and his family that they left the premises until the intensity of the odor subsided. By reason of the defendant's maintenance of the nuisance the value of petitioner's property has been greatly decreased. The damages suffered by him are irreparable, he has no adequate remedy at law, and a multiplicity of suits will result unless the defendant is restrained by the court. The prayers, besides for process and a rule nisi, were: that the defendant be enjoined from further discharging the odorizing gas, that petitioner be allowed damages in stated amounts, and that he have general equitable relief.
The defendant filed an answer denying the material allegations of the petition. At the interlocutory hearing the evidence of the petitioner and his witnesses supported his allegations.
V. R. McGehee, a district superintendent of the defendant deposed in part: The first type of odorizer which was installed by the defendant in the district in question operated on the same principle as the old-fashioned lamp, that is, by a wick which extends into the main line of the gas with the other end in the odorizing liquid. The gas passing over the wick thus absorbed the odorant. The defendant had installed 21 of the wick-type odorizers when it first began having trouble with leakage. Investigation developed the fact that leakage was due to a faulty construction in the odorizers, arising from the fact that the parts were fabricated at different plants and it was impossible to fit them together so as to prevent any leakage of the odorant. In an effort to correct the situation, the defendant converted to a pressure-type odorizer, the principal benefit of which is that it has fewer openings and permits the welding of all outside joints, thus preventing the escape of any odorant. The four odorizing units that the defendant installed at Bowman, Georgia, which are in controversy in this suit were first installed from time to time during the period commencing about February, 1951, and ending about April, 1951, although some of them did not go into use until the first part of 1952. At the time the defendant installed its odorizers, the cities of Bowman, Elberton, Royston, and Toccoa installed and operated similar units of their own. Subsequently, all of these cities have abandoned such odorizing units, but the tanks belonging to such cities are still on the premises with the exception of Elberton, which has been removed. After the defendant began using these odorizers, it would from time to time find small leaks which were permitting the escape of some odorant. As promptly as leaks were discovered, they were repaired, or if necessary the leaking equipment was replaced with new parts. Subsequently, all the wick-type odorizers were converted into pressure-type odorizers, and all of the joints where there was any possibility of the odorant escaping were welded. At the present time these odorizers have been operating for several months with no trace of a leak of any kind, and the installations as now constituted are the best that the defendant has been able to obtain or devise. On several occasions when the defendant received complaints that its equipment was leaking odorant, it found upon checking that the leakage was not in its equipment, but was coming from the equipment owned by the above-named cities. Since the pressure-type odorizers were installed there has been no noticeable leakage.
There was also evidence of other witnesses for the defendant, who lived in the vicinity of the station in question, that they had never been bothered by any gas odor.
The trial judge rendered the following judgment: "After consideration of the evidence and after personally visiting the area in the vicinity of the plant of defendant, it is ordered that interlocutory injunction be and it is hereby denied." To this judgment the petitioner excepted and assigned error because: 1. The judgment is contrary to law, the evidence, and equity, in that it was also based on the judge's personal investigation and visitation of the area in and about the plant, which is the subject matter of the litigation, without the consent of the parties or their attorneys, nor was any notice given to the parties or their attorneys prior to the time of such visit. 2. The judgment is contrary to the evidence and is an abuse of discretion, and the judge erred in not granting an interlocutory injunction.
1. One question for determination is whether the evidence adduced at the interlocutory hearing was sufficient to have authorized the grant of an injunction. It is insisted by the defendant in error that it is a public-service common-carrier corporation engaged in interstate commerce for the purpose of distributing natural gas and operating under a certificate of public convenience and necessity from the Federal Power Commission, and therefore could not be enjoined from further discharging the odorizing if the pumping station was constructed and operated in a proper manner.
While it was held in Georgia R. Bkg. Co. v. Maddox, 116 Ga. 64 (4) ( 42 S.E. 315), that, where a railroad terminal yard is located and its construction authorized under the statutory powers, if it be constructed and operated in a proper manner, it can not be adjudged a nuisance on account of injuries and inconveniences to persons residing near such a yard, from noises of locomotives, smoke, cinders, soot, and the like, which result from the ordinary and necessary use and operation of such a yard — still, it was also held that "a railroad terminal yard, though authorized by statute, may become a nuisance by improper construction or by subsequent improper operation."
This court has also held that, while an airport is not a nuisance per se, it might nevertheless become such from the manner or place of its construction or from the manner of its subsequent operation. Thrasher v. City of Atlanta, 178 Ga. 514 (2) ( 173 S.E. 817); Delta Air Corp. v. Kersey, 193 Ga. 862 (3) ( 20 S.E.2d 245, 140 A.L.R. 1352); Elder v. City of Winder, 201 Ga. 511 (2) ( 40 S.E.2d 659). See also Warren Company v. Dickson, 185 Ga. 481 (3), 483 ( 195 S.E. 568).
In the present case the petitioner alleged that the defendant was negligent in failing to seal up the leaks around the pipes from which the gas was escaping. The petitioner deposed: that odorizing gas is escaping from leaks around pipe joints, odorizing equipment, tanks, valves, and filler caps; that the defendant was informed of this condition three times by petitioner before the action was instituted, and it failed to correct the situation, and the defendant has been negligent about stopping the escape of the odorizing gas; that the defendant has worked on the pumping station since the suit was filed, but the condition is the same as it was before and the air over petitioner's home is still being polluted and contaminated by the odorizing gas. The evidence of the defendant discloses that it originally installed equipment which proved to be defective, but that all the wick-type odorizers were converted into pressure-type odorizers, and that the joints were welded where there was any possibility of the odorant escaping; also that, at the time of the trial, these odorizers had been operating for several months with no trace of a leak of any kind and the installations as now constituted are the best that the defendant has been able to obtain or devise.
The petitioner was not contending that the pumping station was a nuisance per se, but that the defendant was negligent in allowing odorizing gas to escape from its station, which constituted a nuisance. Under the pleadings and the evidence, a finding in favor of the defendant was not demanded, but on the contrary the trial judge could, in the event he had believed the evidence of the petitioner, have enjoined the defendant from negligently allowing the odorizing gas to escape. Compare Transcontinental Gas Pipe Line Corp. v. Gault, 198 F.2d 196, where a judgment enjoining the defendant from operating a compressor-gas station in such manner as to constitute a nuisance was affirmed.
It therefore becomes necessary under the record in this case to pass upon the question of whether the fact that the trial judge personally visited the area in the vicinity of the plant of the defendant, without the consent of the parties, requires a reversal of his judgment denying an interlocutory injunction.
2. In Atlantic c. Ry. Co. v. Mayor c. of Cordele, 125 Ga. 373 (4) ( 54 S.E. 155), after an application for injunction had been heard involving the question of whether the required change in position of certain railroad tracks was in fact for the convenience and welfare of the public, or only for the benefit of another corporation, the trial judge stated in his order refusing to grant an injunction, that he heard evidence and argument, and also that "this order [is] granted after a personal inspection and observation of the tracks and surroundings of the street crossing and tracks involved." It was there held: "It thus appearing that the judge's personal inspection and observation were made an integral part of his judgment, and it not appearing that this was done with the consent of counsel or parties, the judgment will be reversed, with direction that the case be heard upon the evidence which may be introduced, unless inspection by the judge as part of the proceedings be had with the consent of both parties." That case is directly in point and is controlling of this question in the present case.
While it is the law of this State that a trial judge may permit the jury to view the premises, with or without the consent of the parties, whenever in the discretion of the trial judge a view of the premises would aid the jury to understand better the evidence ( County of Bibb v. Reese, 115 Ga. 346 (3), 41 S.E. 636; Central of Ga. Ry. Co. v. Dukes, 134 Ga. 588 (3), 68 S.E. 321; Linder v. Brown, 137 Ga. 352 (2), 73 S.E. 734; Moore v. Macon Coca-Cola Bottling Co., 180 Ga. 335 (1), 178 S.E. 711; Jones v. F. S. Royster Guano Co., 6 Ga. App. 506 (4), 65 S.E. 361; Shahan v. American Telephone c. Co., 72 Ga. App. 749 (2), 35 S.E.2d 5; State Highway Department v. Peavy, 77 Ga. App. 308 (5), 48 S.E.2d 478), still, the ruling in Atlantic c. Ry. Co. v. Mayor c. of Cordele, supra, requires that the present judgment, stating "after consideration of the evidence and after personally visiting the area in the vicinity of the plant of defendant, it is ordered that interlocutory injunction be and it is hereby denied," be reversed with direction that the case be heard upon the evidence which may be introduced, unless inspection by the judge as part of the proceedings be had with the consent of both parties.
The request of counsel for defendant in error to review and overrule the decision in Atlantic c. Ry. Co. v. Mayor c. of Cordele, supra, is denied.
Judgment reversed with direction. All the Justices concur.