Opinion
36444.
DECIDED DECEMBER 4, 1956.
Nuisance; obstruction of alley. Before Judge Pye. Fulton Superior Court. August 13, 1956.
Phillips, Johnson Williams, for plaintiffs in error.
Endicott Endicott, contra.
The plaintiffs' petition set forth special damages accruing to the plaintiffs, therefore it was not error for the trial court to overrule the general demurrers to the petition, nor was the judgment in favor of the plaintiffs erroneous.
DECIDED DECEMBER 4, 1956.
James C. Smith and Mrs. Agnes B. Kennington, hereinafter called the plaintiffs, brought an action against Margaret Maddox and Frank S. Maddox, hereinafter called the defendants. The petition, brought to the Recorder's Court of the City of East Point, alleges a continuing nuisance; that the plaintiffs owned lots along an alley where the defendants had established an alleged nuisance; that the defendants also owned property along the said alley; that the plaintiffs, when they purchased their property, acquired an easement giving the use of said alley as a means of ingress and egress; that the alley has been so used for more than twenty-five years; that the "said property owners and the public generally have a right for the continued uninterrupted use thereof"; that the defendants had notice of the existence of the easement when the defendants purchased their property; that the defendants had been parking their vehicles in said alley, piling dirt and trash in said alley and blocking same from vehicular traffic; that about may 10, 1955, the defendant Banister [Maddox?] erected a fence in the alley, thus encroaching on said alley and appropriating said tract to his own exclusive use and depriving the petitioners of the use thereof, and denying said petitioners their easement thereon; that the defendants, on July 5, 1955, prevailed upon the City Council of East Point, Georgia, to pass a resolution abandoning that portion of said alley between Lee Street and Harrison Avenue; that on July 10, 1955, the defendant Maddox erected a fence across the remaining unfenced portion of the alley, thus blocking the alley in its entirety; that the defendant Maddox placed a "keep out" sign on the fence; that later a permanent fence was built, blocking the alley; that the plaintiffs are entitled to have the said nuisance abated because it interferes with the right granted to them to use said alley and continually works hurt, damage, inconvenience and annoyance to the plaintiffs, the other residents of said subdivision, and the general public. It was prayed that the defendants be required to remove the fences and all other obstructions from said alley, and that the plaintiffs have further relief.
The defendants demurred generally and specially to the petition. The court withheld the ruling on the demurrers and proceeded to hear evidence. After evidence was heard the recorder overruled demurrers, found in favor of the plaintiffs and ordered the obstructions removed. The defendants made application for the writ of certiorari to the Superior Court of Fulton County. It was granted. When it came on to be heard the judge of the superior court overruled the certiorari on each and every ground and rendered final judgment in favor of the plaintiffs. The defendants assign error on that judgment here.
Special damages accrue to the plaintiffs because the method of ingress and egress terminated when the fence was built across the alley thus depriving the plaintiffs of rights under the easement. The case at bar is controlled by Scott v. Reynolds, 70 Ga. App. 545, 552 ( 29 S.E.2d 88), wherein this court said: "If the operations of the defendant constituted a public nuisance and prevented or materially interfered with the plaintiff's right of passage over the alley for ingress to and egress from her lot, which she held under her deed, the injury to the plaintiff caused special damage to the plaintiff in which the public did not participate." Henderson v. Ezzard, 75 Ga. App. 724, 728 ( 44 S.E.2d 397) is also clear on this point. In that case it is held: "The alley in question was a public alley at and prior to its obstruction by the defendant and . . . the plaintiff was specially injured by such obstruction which prevented him from ingress and egress to his property abutting on the alley."
Since paragraphs 8, 12, 15, 17, 18, 20, 22, and 24 all specifically allege that the alley in question was used by the plaintiffs as a means of ingress and egress, which the erection of the fence has prevented, the petition shows special damages, and is not subject to demurrer on this ground.
Crane v. Mays, 70 Ga. App. 66, 67 ( 27 S.E.2d 347) is not applicable under the record and facts of the instant case.
The court did not err in overruling the demurrers of the defendants, nor in the judgment rendered in favor of the plaintiffs.
Judgment affirmed. Townsend and Carlisle, JJ., concur.