Adams v. Cowart
| Citation | 160 S.E.2d 805,224 Ga. 210 |
| Decision Date | 04 April 1968 |
| Docket Number | No. 24533,24533 |
| Parties | A. S. ADAMS et al. v. Mirik A. COWART et al. |
| Court | Supreme Court of Georgia |
Syllabus by the Court
1. There is no merit in the contention that the Comprehensive Zoning Ordinance of the City of Augusta and unincorporated areas of Richmond County, Georgia was never properly adopted by the Board of Commissioners of Roads and Revenues of Richmond County.
2. Section 22 of the Zoning Ordinance, regulating trailer or mobile home parks, was not repealed, by implication, by the subsequent enactment of the Health Code (Ga.L.1964, pp. 499, 561; Code Ann. Ch. 88-11).
3. Under the evidence the trailers owned and operated by the defendants came within the definition of 'house trailer' in the zoning ordinance, and the trial judge properly directed a verdict enjoining their operation and maintenance on Lots 22, 27, 28, 29, and 30 of the Hilltop Annex Subdivision.
4. The judge did not err in directing a verdict enjoining the defendants from maintaining a house trailer, and from operating an automobile sales or storage yard and an automobile used parts lot on Lot 32 of the Hilltop Annex Subdivision.
5. The trial judge did not err in his charge to the jury on the award of attorney's fees.
6. The evidence was sufficient to show that the defendants had acted in bad faith and caused the petitioners unnecessary trouble and expense, and the award of attorney's fees was not erroneous.
7. No error is shown in the failure to grant a new trial, and the judgment is affirmed, with direction to change certain language in the decree as specified in division 4.
Claud R. Caldwell, McGahee & Plunkett, Paul K. Plunkett, Augusta, for appellants.
Thurmond & McElmurray, Ben Swain McElmurray, Augusta, for appellees.
This appeal by A. S. Adams, June Adams, and Lilyan B. Adams is from a decree granting a permanent injunction, enjoining them from maintaining trailers, operating a trailer park, and operating a used car lot, in violation of zoning regulations; and awarding attorney's fees. The petition for injunction and damages was brought by Mirik A. Cowart and others, as property owners residing in Hilltop Annex Subdivision in Richmond County, in the vicinity of the properties of the defendants (appellants here). The trial judge directed the jury to grant a permanent injunction, enjoining the defendants from operating a trailer park and from storing or maintaining house trailers on Lots 22, 27, 28, 29, and 30 of Hilltop Annex Subdivision, and from maintaining a house trailer and storing used cars on Lot 32. The remaining issues were submitted to the jury. The jury awarded $2,000 as attorney's fees.
The errors enumerated are as follows: (1) The court erred in allowing the zoning ordinance of Augusta-Richmond County to be introduced in evidence. (2) The court erred in directing a verdict as to Lots 22, 27, 28, 29, and 30. (3) The court erred in directing a verdict as to Lot 32. (4) The court erred in making a finding of fact on which it directed a verdict as to Lot 32, 'that the trailer had not been properly made permanent.' (5) The court erred in signing a final decree limiting to two the number of automobiles that the defendants may keep. (6) The court erred in charging the jury that attorney's fees could be awarded to the petitioners as expenses of litigation. (7) The court erred in failing to grant a new trial on the ground that the verdict and decree were contrary to law.
1. The 'Comprehensive Zoning Ordinance of the City of Augusta and unincorporated areas of Richmond County, Georgia,' was introduced in evidence over the following objection:
The exhibits introduced in evidence show that the City Council of Augusta and the Board of Commissioners of Roads and Revenues of Richmond County created a joint planning commission under authority of Ga.L.1957, pp. 420-443, as amended (Code Ann. Ch. 69-12), and that both the council and the board of commissioners adopted and approved the zoning ordinance on March 25, 1963. There is no merit in the contention that it was not properly adopted by the board of commissioners.
2. The defendants contend that Section 22 of the zoning ordinance, regulating trailer or mobile home parks, is null, void, and of no effect as the section was effectively repealed by Ga.L.1964, pp. 499, 561 (Code Ann. Ch. 88-11), giving the Department of Public Health and county boards of health certain supervisory controls of tourist courts. This supervision is for the purpose of promoting the health, sanitation, and safety of the public, and is ancillary to, and not antagonistic to, the regulation of trailer parks in the zoning ordinance of Augusta and Richmond County.
'A repeal by implication takes place only insofar as a statute is clearly repugnant to a former statute, and is so irreconcilably inconsistent with it that the two can not stand together, or is manifestly intended to cover the subject-matter of the former and operate as a substitute for it.' Sprayberry v. Wyatt, 203 Ga. 27, 34, 45 S.E.2d 625, 630. The Health Code did not repeal by implication Section 22 of the Augusta-Richmond County Zoning Ordinance.
3. The evidence showed without dispute that Lots 22, 27, 28, 29, 30, and 32 of Hilltop Annex Subdivision were zoned R-1A (single family residential), and that house trailers are not permitted to be located, and used cars are not permitted to be stored, in districts thus zoned.
It is argued by the defendants that the house trailers on these lots do not come within the definition of a house trailer under the zoning ordinance, which definition is as follows: "Trailer Coach', 'Mobile Home', 'House Trailer', 'Mobile Commercial Unit' means any vehicle used, other than a towing vehicle, or maintained for use as a conveyance upon highways or city streets, so designed and constructed as to permit occupancy thereof as a temporary or permanent dwelling unit or sleeping place for one or more persons or for the vending of goods or services and having no foundation other than wheels or jacks.'
The defendants in their answers admitted that they were operating a 'trailer' park. Under the undisputed evidence the trailers were supported by stacked cement blocks,...
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