Bainbridge Power Co v. Ivey

• Court: Georgia Court of Appeals
• Writing for the Court: STEPHENS
• Citation: Bainbridge Power Co v. Ivey, 41 Ga.App. 193, 152 S.E. 306 (Ga. App. 1930)
• Decision Date: 18 February 1930
• Docket Number: No. 19783.,19783.
• Parties: BAINBRIDGE POWER CO. v. IVEY.

41 Ga.App. 193

152 S.E. 306

BAINBRIDGE POWER CO.

v.IVEY.

No. 19783.

Court of Appeals of Georgia, Division No. 2.

Feb. 18, 1930.

Syllabus by Editorial Staff.

Error from Superior Court, Decatur County; B. C. Gardner, Judge.

Action by G. C. Ivey against the Bainbridge Power Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

A. B. Conger, of Bainbridge, and Wilcox, Connell & Wilcox, of Valdosta, for plaintiff in error.

P. D. Rich, of Bainbridge, for defendant in error.

Syllabus Opinion by the Court

STEPHENS, J.

1. A permanent nuisance is not necessarily one which can never, under any circumstances, be abated; but it is one whose character is such that, from its nature and under the circumstances of its existence, it presumably will continue indefinitely. 46 C. J. 650; C, C, C. & St. L. Ry. Co. v. King, 23 Ind. App. 573, 55 N. E. 875; Bischof v. Merchants National Bank, 75 Neb. 838, 106 N. W. 996, 5 L. R. A. (N. S.) 486; N. & W. Ry. Co. v. Allen, 118 Va. 428, 87 S. E. 558, 560; Irvine v. City of Oelwein, 170 Iowa, 653, 150 N. W. 674, L. R. A. 1916E, 990; Cumberland Torpedo Co. v. Gaines, 201 Ky. 88, 255 S. W. 1046; Chesapeake & Ohio Ry. Co. v. Coleman, 184 Ky. 9, 210 S. W. 947. See, in this connection, Penn Mutual Life Ins. Co. v. Milton, 160 Ga. 168, 127 S. E. 140, 40 A. L. R. 1382; Pilgrim Health & Life Ins. Co. v. Gomley (Ga. App.) 148 S. E. 666.

2. Where a reservoir created by the impounding of water by an artificial dam is a part of a hydroelectric development used in the generation of electric current in supplying light and power to industrial communities, and is therefore an essential and inseparable part of an electrical generating system, a nuisance created by the maintenance of the reservoir, which consists in the fact that, by reason of the reservoir having been erected upon wooded land which had not been deforested, there has arisen an accumulation of decaying wood, which renders the reservoir a breeding place for mosquitoes and a source for the emission of objectionable odors, and where the reservoir has been maintained in this condition for a number of years, and the nuisance thus caused cannot be permanently abated without emptying the water from the reservoir and deforesting at a considerable expense the entire flooded area, of about three square miles, and treatment with oil, which must necessarily entail an interruption in the operation of the plant, and where it does not appear that this method is feasible or practicable, or could readily be resorted to by the owners of the reservoir without great expense and inconvenience, or that when once employed it would be permanently abate the nuisance, and where it does not appear that...