Mitchell v. Green
Mitchell v. Green
Opinion of the Court
(After stating the foregoing facts.) As to the nuisance feature of this case, the law is clear that to abate a nuisance, public or private, alleged to exist within an incorporated municipality, such proceeding must be filed with and determined by the municipal authorities, unless there are special circumstances requiring the intervention of equity. Code, § 12-401; Waller v. Lanier, 198 Ga. 64 (30 S. E. 2d, 925). The allegations of the petition are not sufficient to give á court of equity jurisdiction on the grounds of a continuing nuisance, as discussed and applied in Poultryland Inc. v. Anderson, 200 Ga. 549 (1a) (37 S. E. 2d, 785).
It is insisted here that,the permit to construct the garage building having been issued under authority of the city council, the city has become a party at interest and is disqualified to act in the premises, and for that reason a court of equity should assume jurisdiction. Whether or not, under any allegations of the petition, the actual construction of the garage building would amount to a nuisance under the decisions in Fisher v. Georgia Vitrified Bride Co., 121 Ga. 621 (49 S. E. 679), Smyth v. Nelson, 135 Ga. 96 (3) (68 S. E. 1032), Wingate v. Doerun, 177 Ga. 373 (3) (110 S. E. 226), and Pittard v. Summerour, 181 Ga. 349 (182 S. E. 20), need not here be determined. But for reasons hereinafter stated in the second division of this opinion, the fact that the building permit was issued under authority of the city council did not present any special circumstances requiring a court of equity to assume jurisdiction. Accordingly, there was no error in sustaining the demurrer to this effect.
The plaintiffs in error insist that the court erred in dissolving the restraining order and denying the injunction, and contend that the building permit was issued, and the construction of the garage building was proceeding, in violation of the provisions of the city ordinance; contending that the building under construction was outside of the inner fire zone, and that the consent of a majority of property owners, whose property lies within two hundred feet of the location of the proposed building, had not been obtained. Upon the hearing the evidence was undisputed that no consent had been given by a majority of the adjoining property owners, as provided in the amendment to the ordinance.
Accordingly, the court did not err in dissolving the restraining order or in denying the injunction.
Judgment affirmed.
Reference
- Full Case Name
- MITCHELL v. GREEN
- Status
- Published