Farley v. Gate City Gaslight Co.

• Court: Georgia Supreme Court
• Writing for the Court: LITTLE, J.
• Citation: Farley v. Gate City Gaslight Co., 105 Ga. 323, 31 S.E. 193 (Ga. 1898)
• Decision Date: 27 July 1898
• Parties: FARLEY v. GATE CITY GASLIGHT CO.

31 S.E. 193

105 Ga. 323

FARLEY v. GATE CITY GASLIGHT CO.

Supreme Court of Georgia

July 27, 1898

Syllabus by the Court.

1. Though, in an action to recover damages for the maintenance of a continuing nuisance, the jury return a verdict for only nominal damages, such verdict will not be set aside on the grounds that it is contrary to law and evidence, and so small in amount as to show "bias and prejudice on the part of the jury, and is inadequate and too small," where the evidence is conflicting, and there is evidence which authorizes a finding that the premises of the plaintiff had sustained no injury resulting in pecuniary damage to the plaintiff, and that the same had not been rendered substantially uncomfortable and unhealthy for occupancy by herself and family as a residence.

2. In such a case a charge in the following language, "One who owns a lot has a right to have the air which passes over his or her property to be in a natural state, considering the location, situation, and surroundings of the lot,"--was inaccurate; yet, where there was evidence tending to show that the premises of the plaintiff were invaded by foul gases and noxious odors, and the soil of her lot permeated with poisonous substances, emanating from other sources, with which the defendant had no connection, and it appeared that this instruction, when read in connection with the entire charge of the court on this particular branch of the case clearly instructed the jury that the defendant, while answerable for the existence of any nuisance created by its works, would not be responsible for any act or conduct of others, or for the invasion of her premises by foul gases noxious odors, or poisonous substances emanating from other independent, sources, such charge is not good cause for a new trial.

3. The charge of the court fully and correctly instructed the jury what damages the former recovery embraced, and also the elements of damages and the measure of the plaintiff's recovery in the present action.

4. Where, in the trial of an action to recover damages for a continuing nuisance, the jury find that the plaintiff has suffered no special damage, and yet find that a nuisance exists, a verdict for nominal damages is proper.

5. In the trial of such a case, where it appears that the plaintiff had previously instituted an action and recovered damages sustained by her by reason of the creation and maintenance of the same nuisance, an announcement made by the presiding judge, in open court, in order to properly confine the range of evidence, as to what damages were embraced or recovered in the former action, and as to what items of damage might be recovered in the subsequent action, is not cause for a new trial, even though made in the presence of the jury, where it appears that such announcement was made by request of counsel for both parties, that they made no request for the jury to retire, and that the judge, in his charge, carefully instructed the jury that they had nothing to do with the admissibility of evidence, or the colloquies on the subject of the admissibility of evidence, but should try the case under the law as given them in charge, and the opinion they entertained of the evidence admitted. Especially will such announcement afford no cause for a new trial where it appears that the announcement, as made, is pertinent to the issues involved, and is not itself an inaccurate statement of the law touching the subject with which it deals.

6. If, in such a case, the plaintiff also seeks to obtain an injunction to prevent a continuance of the nuisance, a charge in the following language: "But the plaintiff must show you that the defendant is not only maintaining a nuisance, but that it will continue to do so in the future, and that it is necessary for the protection of the plaintiff's rights in the future to enjoin the defendant,"--should not be given, because inaccurate; but, nevertheless, the discretion of the trial judge in overruling a motion for a new trial on exception taken to such charge will not be disturbed, where there is evidence warranting a finding that the plaintiff had sustained no special damages, and that her premises had not been rendered substantially uncomfortable or unhealthy for occupancy by herself and family as a residence, and also evidence warranting a finding that subsequent to the institution of the action, but prior to the trial, the defendant had practically abated such nuisance.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Petition by Mary Farley against the Gate City Gaslight Company to enjoin the maintenance of a nuisance, and to recover damages for its maintenance. There was a judgment for plaintiff for nominal damages, and she brings error. Affirmed.

Longino & Golightly, for plaintiff in error.

Van Epps & Leftwich, for defendant in error.

LITTLE J.

On May 4, 1893, Mrs. Mary Farley filed in the city court of Atlanta her petition against the Gate City Gaslight Company to recover damages from the latter alleged to have been sustained by her, in her person and property, by reason of the maintenance by the defendant of an alleged nuisance. She showed that she was the owner of a house in the city of Atlanta, which she and her family occupied as a dwelling that there was on the premises a well of pure water,--a rich and valuable garden spot, on which she raised fruits and vegetables; and that large shade trees, shrubbery, and flowers, which contributed to the comfort of petitioner and her family, and to the attractiveness of their home, were also growing on said lot. She showed: That, while occupying and thus in the enjoyment of her home, the defendant purchased a lot in close proximity to that of plaintiff, divided therefrom only by a street 28 feet wide, and that said lot was elevated above the lot of plaintiff. That the lot purchased by defendant had before the purchase been vacant, or occupied by residences, and that the defendant, without the consent of petitioner, and against her will, placed on the lot so purchased buildings, machinery, and appliances for the manufacture of gas, and dug out and constructed wells or reservoirs of large dimensions for the purpose of holding gas and storing same for distribution over the city for illuminating purposes. That these reservoirs were filled with water, and over them were placed large holders, supported by framework, and adjusted so as to move up or down according to the amount of gas therein contained, and to supply the necessary pressure for the distribution of gas. In excavating said wells or reservoirs, the defendant utilized the dirt in building a wall or embankment some 20 feet high on the line of its lot adjoining the street which divides the plaintiff's lot from that of the defendant; the wall or embankment and tops of the reservoirs being some 20 feet higher than the surface of petitioner's lot. The largest reservoir is situated just across the street, and within about 40 feet of the residence and well of petitioner. The reservoirs have capacity for many thousands of gallons of water, are kept nearly full all the time, and there is no outlet for the escape of water, except by an overflow pipe at the top of one of the reservoirs, or by surface leakage, absorption through the walls, or by evaporation. Between the walls of the reservoirs and the walls of the holders there is a space of 2 to 3 feet around the same, which is open and never closed or covered, and in which filth can fall and accumulate, and, when so fallen, there is no way to get it out, except by removing the water, which is never done. This water, by reason of long standing, and accumulations of filth, and contact with the gas, or other causes, has become stagnant, impure, odious, and offensive, from which petitioner and her family suffer annoyance. There escape and issue from the plant and works, and from the reservoirs and holders, unpleasant, offensive, noxious, and unhealthy odors, gases, and vapors, which permeate and contaminate the atmosphere about the premises of petitioner, producing headache, coughs, nausea, stupidity, dullness of feeling and depression of spirits, and otherwise injuring the health of petitioner and other members of the family, rendering her home almost uninhabitable. Prior to the erection and operation of the works there was rarely ever any sickness in the family, but since that time, to wit, the 15th day of May, 1889, the health of petitioner and other members of the family had been seriously affected, and there have been two cases of fatal sickness in the family. By reason of the escape, leakage, and drainage from the reservoirs of the impure matter and noxious gases which have seeped through and percolated the soil of her lot, her well of water has been rendered impure and wholly unfit for use, and plaintiff has had to abandon same; and in consequence of the impurity of the atmosphere and pollution of the soil the trees, shrubbery, flowers, etc., on petitioner's premises are dying and have died, depriving petitioner and family of pleasure and comfort, and for the same reason vegetation will not grow and thrive upon the premises; and petitioner has had to abandon her garden spot, which contributed largely to the support of herself and family, and from which she derived considerable income. She alleged: That the gas contained in the holders was explosive and dangerous, and a constant menace or source of annoyance and anxiety to petitioner. The damage to her and her property is gradually and steadily increasing, growing more and more injurious, burdensome, and damaging. The erection, maintenance, and operation of the plant, etc., is a nuisance, and the hurtful, injurious, and damaging character and effects thereof have steadily and continuously...