City Council Of Augusta v. Reynolds

• Decision Date: 10 May 1905
• Citation: 122 Ga. 754,50 S.E. 998
• Parties: CITY COUNCIL OF AUGUSTA et al. v. REYNOLDS, Sol. Gen.
• Court: Georgia Supreme Court

122 Ga. 754

50 S.E. 998

CITY COUNCIL OF AUGUSTA et al.

v.REYNOLDS, Sol. Gen.

Supreme Court of Georgia.

May 10, 1905.

PUBLIC NUISANCE—USE OF STREETS—INJUNCTION.

1. A fair occupying 75 or 80 feet in width and 4 blocks in length of an important business street in a city, and consisting of numerous tents, inclosing shows and exhibitions, in front of which are stationed men blowing horns and talking through megaphones to attract attention, together with various other stands, booths, structures, Ferris wheels, merry-go-rounds, and other devices for amusement of the public and profit to the owners, which fair a company of the state militia is permitted to station on the street for a week, is a public nuisance of a most aggravated nature.

2. There is nothing in the charter of the city of Augusta which permits the city authorities to grant the use of its streets for the operation of an enterprise of the nature above indicated.

3. A court of equity has jurisdiction, at the instance of the Solicitor General, to restrain by injunction the erection of a public nuisance.

(Syllabus by the Court.)

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Action by J. S. Reynolds, Solicitor General, ex rel., against the city of Augusta and others. Judgment for relator, and defendants bring error. Affirmed.

An information was filed in behalf of the state by the Solicitor General of the Augusta circuit, upon the petition of named parties, complaining of the city council of Augusta and John D. Twiggs, Jr., as captain of the Oglethorpe Infantry, a company of the state militia. The petition alleged, in substance, as follows: For several years past it has been customary from time to time to hold street fairs or carnivals in the city of Augusta. The city council has granted the defendant Twiggs permission to hold one of such fairs during the first week in May, 1905. on Broad street, which is 180 feet wide, and is the principal business street and thoroughfare in the city. Seventy-five feet of the street in width and four blocks in length will be occupied by the tents, buildings, and structures of the fair. The fair will consist of tents, inclosing shows and exhibitions, structures, stands, Ferris wheels, merry-go-rounds, "shoot the chutes, " the "loops, " and various and sundry devices and constructions and obstructions, and will monopolize the portion of the street in which it is placed. These obstructions will seriously interfere with the use of the street by the public for traffic, travel, and business, and will occasion great hurt and annoyance to the citizens in general. The carnival will consist of a large number of separate shows and exhibitions, each in a separate tent or inclosure, besides numerous stands or booths for the sale of articles of merchandise. Criers or "spielers" will be stationed in front of each tent, show, stand, or booth, who, by the use of horns, megaphones, bells, drums, and similar instruments, will attempt to attract crowds of people in the street to each place. Admission will be charged by the proprietors to the said shows and exhibitions. It is alleged that the city council of Augusta has no authority under its charter to permit such an obstruction of its streets as will be made by the carnival; that, the nuisance not being completed, the statutory remedy for the abatement of nuisances is not applicable, and that a separate proceeding would have to be instituted to abate each show or exhibition; and that for these reasons a court of equity has jurisdiction to enjoin the erection of the obstructions composing the fair. The prayer was for such an injunction. The case was heard on demurrer to the petition. The judge granted an interlocutory injunction, and the defendants excepted.

C. Henry Cohen, Austin Branch, and Geo. T. Jackson, for plaintiffs in error.

E. H. Callaway, J. S. Reynolds, Sol. Gen., and W. K. Miller, for defendant in error.

COBB, J. 1. Streets are primarily intended for the use of travelers, and a municipal corporation has no power, in the absence of express legislative authority, to allow a street to be used for any other purpose. Pol. Code 1895, § 745. Any permanent structure in a street which materially interferes with travel thereon is a public nuisance. Permanent structures which do not interfere with travel, and which are erected for public purposes, such as telegraph and telephone poles, and the like, are permissible. But no permanent structure of any character which interferes in the slightest degree with the right of travel upon the street is ever permissible where suchstructure is erected for purely private purposes. Temporary obstructions in a street are permissible under certain circumstances, even where the obstruction is for the benefit or convenience of an individual. A merchant may temporarily obstruct passage along a street, either in receiving goods from a carrier on the street, or delivering goods to such carrier. A householder may temporarily obstruct a street in moving his effects out of or into his house. It is impossible to enumerate all the cases in which the temporary obstruction of a street may be allowed, but the general rule is that if the purpose for which the obstruction is created is lawful, and the obstruction exists only for such a time as is reasonably necessary to accomplish the purpose which brings about the necessity for the obstruction, such an obstruction would not be a public nuisance. What would be a reasonable time is to be determined according to the circumstances of each case. If the obstruction continues for a time that is not reasonably necessary for the accomplishment of the purpose, then it becomes a public nuisance. What...