Butler vs. The Mayor, etc., of Thomasville et al.

Supreme Court of Georgia1885-03-30

74 Ga. 570

Summary · law.co

Holding. The court reversed the lower court's denial of the injunction and ordered that an injunction issue to restrain the City of Thomasville from discharging sewage onto Butler's property, finding both that the discharge constitutes a continuing nuisance causing special harm to Butler and that the City lacks statutory authority to take or damage his property without compensation.

Butler sought an injunction against the City of Thomasville to prevent it from discharging sewage onto his property. The court found that the discharge constituted a nuisance—the deposit of filthy sewage that would likely cause injury to health and sickness in the household, with consequences that were reasonably certain rather than merely possible. Because this nuisance would cause special damage to Butler that the public did not share, and because the nuisance was continuing and likely permanent, a court of equity had authority to intervene.

The court also determined that the City lacked legal power to take or damage Butler's property without express authorization from the legislature and without paying just and adequate compensation beforehand. The City's charter and applicable legislation contained no grant of power to enter Butler's land for sewer construction, nor any procedure for condemning the property for public use. Since only the City had the power to abate the nuisance it was creating—and no party may judge its own case—the court concluded that equity should grant the injunction to prevent irreparable harm.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether discharge of sewage onto another's land constitutes an actionable nuisance
Whether a municipal corporation may enter and damage private property for public improvement without express legislative authorization and compensation
Whether equity should grant an injunction when the party creating the nuisance is the only entity with power to abate it

Procedural posture

Butler sought an injunction in equity against the City of Thomasville and its officials to prevent the discharge of sewage onto his property; the lower court (chancellor) refused to grant the injunction, and Butler appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Blandford. Justice.

We think the allegations in the bill and the admissions in the answer make a case of nuisance. The discharge of filthy sewage upon the land of another, which may probably cause injury to the health and sickness in the family of such person, and where the nuisance is continuing and likely to be permanent, and where the consequences are not barely possible, but to a reasonable degree certain, a court of equity may interpose to arrest such nuisance before completed. Code, §3002. Again, we have held that if a nuisance causes special damage to an individual, in which the public do not participate, such special damage gives a right of action, and as an action may be brought for every day the nuisance continues, equity, which abhors a multiplicity of suits, will entertain jurisdiction so as to do full and complete justice between the parties and terminate the litigation. Georgia Chemical and Mining Company vs. Colquitt et al., 72 Ga.. 172; 18 Ga., 528. More especially will this be done when the party which seeks to create the nuisance is the only tribunal which has the power to abate the nuisance, as in this case. The nuisance is in the city of Thomasville, and it is this city, by its proper authorities, which has the power under the law to abate this nuisance, and yet it is the power which is perpetrating it. This case differs in this particular from Powell vs. Foster, 59 Ga., 790. Here it is the municipal authorities which seek to create the nuisance. No one can be a judge in his owncase. The damages likely to result to the plaintiff in error by reason of the nuisance are irreparable. See Wood’s Law of Nuisances, sections 502, 512, 301, 684, 685, 686; Code, §§3000, 3210, 3219, and citations, which fully sustain the text.

There is no power or authority vested in the city of Thomasville authorizing it to enter upon or take the land of plaintiff for the purpose of digging or laying a sewer thereon, by its charter or other acts of the legislature. Acts of 1874, page 167. Nor is there any mode prescribed for the condemnation of such property for public use. Without express grant of such power, a municipal corporation cannot exercise it. Private property cannot be taken or damaged for public use without just and adequate compensation being first paid. Constitution of this state; Code, §§5024, 2225. The legislature may authorize the taking of private property, as provided by section 2222. If such authority be improperly granted, the courts shall declare it inoperative. Code, §2223. To justify the authority claimed by the city in this case, two things must concur: 1st. The necessity for the taking. 2d. Payment of just and adequate compensation before taking. The constitution and laws of this state guard with vigilance and jealousy the private rights and property of the citizen, and the courts of the state have ever extended their aid and assistance in the same direction, as will be seen by an examination of the following authorities: 1 Kelly, 524; 3 Id., 31, 333; 6 Ga., 130; 9 Id., 37, 341; 14 Id., 1; 19 Id., 427; 37 Id., 297; 33 Id., 508; 42 Id., 501; 33 Id., 625.

However much we are disinclined to interfere with the discretion of a chancellor in granting or refusing to grant an injunction, we feel constrained, under the facts set forth in this record, to reverse the decree refusing the injunction prayed for in this case, and to order an injunction to issue.

J udgment reversed.