Summary
holding that mandamus was unavailable to compel the Mayor and Aldermen of Savannah to file a lawsuit to abate a public nuisance, where the plaintiff had standing to file such a lawsuit himself
Summary of this case from Southern LNG, Inc. v. MacGinnitieOpinion
24810.
SUBMITTED SEPTEMBER 12, 1968.
DECIDED SEPTEMBER 24, 1968.
Mandamus. Chatham Superior Court. Before Judge McWhorter.
Aaron Kravitch, for appellant.
David R. Elmore, for appellee.
An encroachment upon a public street being a public nuisance is subject to being abated upon the application of a private individual who is specially injured thereby.
SUBMITTED SEPTEMBER 12, 1968 — DECIDED SEPTEMBER 24, 1968.
Leonard Ungar filed a petition in the Superior Court of Chatham County in which he sought to mandamus the Mayor and Aldermen of the City of Savannah to file proceedings to have an alleged nuisance abated. The petition alleged that the owners of property adjacent to property owned by the plaintiff had built the stairs to their building so that they encroached upon the public sidewalk by approximately one foot. It also alleged how the plaintiff was injured by such encroachment differently from the public generally. The trial court sustained general and special demurrers to plaintiff's petition and it is from such judgment adverse to him that plaintiff appeals. The petition and demurrers were filed prior to the effective date of the Civil Practice Act but the judgment of the trial court was not rendered until after the effective date of such Act.
1. "`The right to extraordinary aid of mandamus exists only where the applicant has a clear legal right to the relief sought and there is no other adequate remedy.' Lindsey v. Board of Commissioners of Roads Revenues of Colquitt County, 169 Ga. 368 ( 150 S.E. 261); Rollins v. Elder, 180 Ga. 316, 318 ( 178 S.E. 719); Wright v. Forrester, 192 Ga. 864, 867 ( 16 S.E.2d 873); Densmore v. West, 206 Ga. 531, 532 ( 57 S.E.2d 675). If the allegations of the petition should be construed as sufficient to show the creation of a public nuisance, there are no allegations that the abatement of the nuisance in the manner authorized by law would not afford the petitioners adequate relief. The writ of mandamus, therefore, would not lie." State Hwy. Dept. v. Reed, 211 Ga. 197 (3) ( 84 S.E.2d 561). While a plaintiff's petition is no longer construed most strongly against him yet a motion to dismiss for failure to state a claim is properly sustained where a petition shows that a plaintiff is not entitled to recover, and a petition for mandamus will not lie where there exists an adequate remedy at law. Code § 64-101.
Thus, assuming that the allegations of the plaintiff's petition, with reference to a one-foot encroachment upon the public sidewalk, show a public nuisance, then there exists an adequate remedy at law by a petition to have such nuisance abated under the provisions of Code § 72-202 in view of the allegations contained in the petition as to special injuries to plaintiff. As was held in Maddox v. Willis, 205 Ga. 596 (6) ( 54 S.E.2d 632): "An encroachment upon a public alley or street of a municipality is a public nuisance, and one who is specially injured thereby may proceed in his own name to enjoin such encroachment. Savannah Railway Co. v. Gill, 118 Ga. 737 (3) ( 45 S.E. 623); Hendricks v. Jackson, 143 Ga. 106 (1) ( 84 S.E. 440); Holman v. Athens Empire Laundry Co., 149 Ga. 345, 349 ( 100 S.E. 207); Moon v. Clark, 192 Ga. 47, 50 ( 14 S.E.2d 481)."
Accordingly, the trial court did not err in dismissing the plaintiff's petition seeking to mandamus the municipal authorities to proceed to have such alleged nuisance abated.
Judgment affirmed. All the Justices concur.