Opinion
33840.
DECIDED FEBRUARY 23, 1952.
Certiorari; from Hall Superior Court — Judge Edmondson. September 11, 1951.
Wheeler, Robinson Thurmond, for plaintiff.
Telford, Wayne Smith, for defendant.
Under the provisions of Code § 72-401, the municipal authorities of cities having a population of less than 20,000 have jurisdiction to abate private nuisances, and such jurisdiction extends to the abatement of obstructions in private alleys over which the complainant holds a contractual easement by deed.
DECIDED FEBRUARY 23, 1952.
Frank W. DeLong Sr. filed an action with the Mayor and Commissioners of the City of Gainesville against Mrs. Henrietta Evans Kent to abate an alleged nuisance. The allegations of his petition were substantially as follows: The plaintiff is the owner of the following tract of land in the City of Gainesville: "A certain dwelling and lot in Gainesville, Hall County, Georgia, commencing at a point 130 feet from the junction of Green and Rice Streets and running along the west side of said Green Street 138 feet to T. H. Robertson's corner; thence in a westerly direction along T. H. Robertson's line 314 feet to an alley; thence in a southerly direction along said alley 130 feet; thence in an easterly direction along the alley annexed to the Dorsey house place 300 feet to the beginning corner and lying between the dwelling house of T. H. Robertson and the Dorsey home place, containing one acre, more or less, together with use of alley in rear of above described property forever, being 32 feet in width and leading from Rice Street in a northerly direction to Winfield Pickerel's back line and being immediately in rear of above described property and the Dorsey home place," under a duly recorded deed. The plaintiff then enumerated the links in his chain of title back to the year 1900, and alleged that each deed in his chain was duly recorded and conveyed to each of his predecessors in title the use of the alley specified in his deed. The plaintiff alleged further that the alley referred to in the deeds extends and has extended for at least fifty years from Forrest Avenue (formerly Rice Street) northward to the line of what is known as to the W. S. Pickerel home place and is approximately 243 feet in length from Forrest Avenue. The alley runs along the entire length of the plaintiff's property on its west line and is the only available entrance to his property from Forrest Avenue. The defendant claims to own and occupies a tract of land 100 feet in width, which is bounded on the east by the west side of this 32-foot alley. She is maintaining a set of concrete steps and an embankment on the west side of said alley, and they extend out into the area included in the alley and obstruct approximately 15 feet of the width of the alley from the sidewalk on Forrest Avenue, and obstruct approximately 120 feet of the length of the alley, leaving only 16 feet as the width of the alley for such distance. She has graded a portion of the alley in making a turn-out to the left into her back yard so as to leave that portion of the alley adjacent to her turn-out considerably higher than the remainder of the alley, and she has placed and fixed large stone in the ground adjacent to this point, which makes it almost impossible to travel the alley in a vehicle. Garbage and service trucks must cross these obstructions in entering the plaintiff's property to service the plaintiff's home and a dwelling on the rear of the plaintiff's property which is occupied by another family. Considering that portion of the alley in which obstructions have been placed by the defendant, she is occupying some 125 feet of lands fronting on Forrest Avenue. These obstructions, steps, stones, and embankment constitute a private nuisance, which interferes with and impedes the plaintiff's use of the entrance to his property and works damage and injury to him. The matters complained of constitute a continuing nuisance and exist inside the City of Gainesville, which is under a government of a mayor and two commissioners. The plaintiff is entitled to have the nuisance abated because it interferes with the right granted to him to use the alley and continually works hurt, damage, inconvenience, and annoyance to the plaintiff and the family which occupies the house on the rear of the plaintiff's property.
The defendant filed a plea to the jurisdiction of the mayor and commissioners to determine the issues, on the ground that the alley was in and had been in private occupation for thirty or forty years and has never been actually opened, worked by the municipal authorities, or used by the public. The mayor and commissioners, after a hearing on the special plea to the jurisdiction of that body, sustained the plea and dismissed the plaintiff's complaint.
The plaintiff applied to the Superior Court of Hall County for a writ of certiorari, which was issued, but upon a hearing there on the issue of the jurisdiction of the municipal authorities, the petition for certiorari was denied and dismissed, and the plaintiff excepted.
The plaintiff sought to abate the alleged nuisance under the provisions of Code § 72-401. The original statutory provision for the abatement of nuisances in Georgia was contained in the Penal Code of 1833, Tenth Division, Section XXIV (Ga. L. 1833, p. 188; Cobb, p. 817), and that one section covered the abatement of nuisances in the towns and cities as well as the unincorporated areas of the counties; two or more justices of the peace were clothed with jurisdiction of nuisances in the unincorporated areas of the county, and this jurisdiction is extant today under the provisions of Code § 72-201; designated municipal authorities were clothed with jurisdiction of nuisances in the towns and cities, and this jurisdiction is extant today under the provisions of Code § 72-401. This section of the act of 1833 was first divided into various sections in the Code of 1863 (See Code, 1863, §§ 3995, 3996). It appears from this brief review of the origin of our statutory provisions for the abatement of nuisances that the legislative intent at the time of the passage of the act of 1833 was that the justices of the peace and the designated municipal authorities were clothed with equal authority within their respective territorial jurisdictions to abate nuisances, and what the justices of the peace could do in the county, the municipal authorities could equally do in the towns and cities. If this is true — and we are convinced it is true — the solution to the question of the jurisdiction of the Mayor and Commissioners of Gainesville, a city of less than 20,000 population, to abate a nuisance consisting of the obstruction of a private way, is relatively simple. As early as 1875, the Supreme Court held, in Salter v. Taylor, 55 Ga. 310, that the "stopping or impeding a private way is a private nuisance . . [and] such a nuisance may be abated by a proceeding before two justices of the peace and a jury, under sections 4094 and 4098 of the Code [of 1873]" (Code of 1933, §§ 72-201, 72-202, 72-203), relying upon the authority of Ruff v. Phillips, 50 Ga. 130. Our position on this point is not new and we find a wealth of authority for it in the following cases: Hart v. Taylor, 61 Ga. 156; Holmes v. Jones, 80 Ga. 659 ( 7 S.E. 168); Savannah, Florida Western Ry. Co. v. Gill, 118 Ga. 737, 745 ( 45 S.E. 623); and see also Adair v. Spellman Seminary, 13 Ga. App. 600, 608 (3) ( 79 S.E. 589), and cases cited; Waller v. Lanier, 198 Ga. 64 ( 30 S.E.2d 925); Mitchell v. Green, 201 Ga. 256 ( 39 S.E.2d 696). We find no special circumstances alleged in the petition such as would invoke the equity jurisdiction of the superior court; and if title to land can be said to be involved at all under the allegations, it is only incidentally so.
From what has been said above, it follows that the municipal authorities of the City of Gainesville had jurisdiction of this petition to abate the nuisance, and the superior court erred in overruling the petition for certiorari.
Judgment reversed. Gardner and Townsend, JJ., concur.