Grubbs v. Wooten

• Court: Georgia Supreme Court
• Writing for the Court: ATKINSON, Presiding Justice.
• Citation: Grubbs v. Wooten, 189 Ga. 390, 5 S.E.2d 874 (Ga. 1939)
• Decision Date: 14 November 1939
• Docket Number: 12880.
• Parties: GRUBBS et al. v. WOOTEN et al.

5 S.E.2d 874

189 Ga. 390

GRUBBS et al. v. WOOTEN et al.

No. 12880.

Supreme Court of Georgia

November 14, 1939

Rehearing Denied Dec. 5, 1939.

Syllabus by the Court.

'A nuisance is anything that works hurt, inconvenience, or damage to another, and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man.' Code, § 72-101.

(a) Under this law the mere display and sale of tombstones and monuments designed and intended to be placed over the bodies and graves of deceased persons, such display being made on a lot in an exclusively residential section of the City of Atlanta, and in such manner as to present a 'grave-yard appearance,' is not a nuisance, and may not be enjoined by residents and owners of property in the vicinity, on the grounds that it injuriously affects the values of their properties, and that the constant appearance of the spectacle would prey upon the minds and injuriously affect the health of the individuals.

(b) The judge did not err in dismissing the action on demurrer to the petition, for the reasons stated in the assignments of error and insisted upon in the briefs of the attorney.

Proprietors of a vacant city lot located in an 'exclusively modern and distinctly residential section of the City of Atlanta' proceeded to erect and maintain thereon a described small and unsightly building to be used by them as an office, and to conduct the business of displaying, for sale on the lot, tombstones and monuments designed and intended to be erected over the graves or bodies of deceased persons. The display resembled a graveyard. The lot was very near one of the public schools of the city, and was a stated but more remote distance from another school. The inhabitants of that section of the city were average normal people of average normal sensibilities. The unsightly spectacle has already caused and will continue to cause the alleged injury to property and health, and especially to the large number of children attending the schools. Certain residents and owners of nearby lots instituted an action against the proprietors to enjoin such uses of their lot, on the ground that they constituted public nuisances that have already and will in the future injuriously affect the health of the inhabitants of the community including petitioners, and decrease the values of their several properties. The petition as amended substantially alleged the foregoing. By way of elaboration it was alleged, in [189 Ga. 391] paragraph 18 of the petition that 'each and every time petitioners and their children and the children of the neighborhood look at said cemetery-like group of monuments located in the center of said neighborhood, and also when they are not looking at said spectacle of grave-like monuments and when they think of them, which is continuous night and day, they are instantly thrown into the thoughts of the horrors of the sick-room, the morgue, autopsies, embalming of loved ones, hearses and funerals, and especially those who have passed on, and thus constantly and too continuously being reminded of such thoughts does cause petitioners and others similarly situated, and particularly their growing children passing through their formative years, to become and remain depressed to the extent that their health and spirits are impaired.'

At interlocutory hearing the judge dismissed the action on general demurrer. The plaintiffs excepted, assigning error generally and specifically as follows: '(a) Said petition set forth a cause of action as against general demurrer, and should not have been dismissed, same having parties plaintiff and defendant, alleging jurisdiction, and alleging that the said cemetery-like spectacle on the vacant lot in a distinctively and essentially residential section of homes ranging from around five to fifteen thousand dollars in value, in the same block with a large grammar school, and further alleging damage to rental and sale value of the property, an alleging that said grave-like spectacle constituted an invasion of petitioners' right to peace and repose in their homes and thereby irreparably affected their health and the health of all in the community. (b) That although the great number of tombstones erected on said vacant lot were not graves, they created a psychological effect on the people in the community, just as much as an undertaking establishment in a residential section or a display of coffins or caskets in a strictly residential section, and thereby constituted an unlawful invasion of the peace of mind of the people of the community, particularly plaintiffs, aside from irreparably damaging the property values in said community near said school; and that the trial judge should have therefore overruled the general demurrer, and should not have sustained said demurrer and should have heard evidence on the issues of fact. (c) That although the said grave-yard-like spectacle in the center of a distinctively residential section near said school, said section being peopled by inhabitants of average and normal sensibilities, did not constitute a nuisance per se, said spectacle might, if said judge had heard evidence, professional and lay, have been adjudged a nuisance per accidents, by virtue of its location in said fine residential section, just as much so as a pest-house might have been so adjudged, although a pest-house might not be a nuisance per se.'

William A. Thomas, of Atlanta, for plaintiffs in error.

E. Harold Sheats, of Atlanta, for defendants in error.

ATKINSON Presiding Justice.

1. By the allegations of the petition that was dismissed on general demurrer, the business involved in this case is that of display and sale of tombstones and monuments designed and intended to be placed over the graves or bodies of deceased persons, such business having recently been commenced and still conducted in an exclusively residential section of the City of Atlanta. The ground of complaint is that operation of the business at that place is harmful to the petitioners and others in the vicinity, affecting their health and property and causing irreparable damage that should be enjoined. In the brief of the attorney for the plaintiff it is stated: 'We do not claim that the cemetery-like display is necessarily a nuisance per se, but we do claim that it can be a nuisance per accidens, and that the case should have been retained rather than dismissed on demurrer.' Thus the controlling question as raised by the special assignments of error, as shown in the statement of facts and insisted on in the brief is reduced to that of enjoining a nuisance. It is declared in this State: 'A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man.' Code, § 72-101. Citing and applying this law, it was held in Thrasher v. Atlanta, 178 Ga. 514, 173 S.E. 817, 818, 99 A.L.R. 158, that an airport is not a nuisance per se, although it might become a nuisance from the manner of its construction or operation, and further that 'Mere apprehension of injury from the falling of planes is not sufficient to authorize an injunction against aerial navigation over the property of the complainant.' In Holman v. Athens Empire Laundry Co., 149 Ga. 345, 350, 100 S.E. 207, 210, 6 A.L.R. 1564, it was said: 'Every one has the right to use his property as he sees fit, provided that in so doing he does not invade the rights of others unreasonably, judged by the ordinary standards of life and according to the notions of reasonable men. The right to use one's property as he pleases implies a like right in every other person, and is qualified by the doctrine that the use in the first instance must be a reasonable one. * * * That the business itself is offensive to others, or that property in the neighborhood of such business is necessarily adversely affected thereby, or that persons of fastidious taste would prefer its removal, is not sufficient. Applying the foregoing principles to the case in hand, the defendant may make use of its property, and carry on any business not per se a nuisance, that produces no unnecessary, unreasonable, unusual or extraordinary impregnation of the air with smoke or soot, to the sensible inconvenience and discomfort of plaintiff's tenants, or to the actual, tangible, and substantial injury of plaintiff's realty.'

In Austin v. Augusta Terminal Co., 108 Ga. 671, 677, 34 S.E. 852, 854, 47 L.R.A. 755, may be found this statement 'If a great manufacturing plant had been erected on the adjoining lot, the market value of plaintiff's house might have been greatly injured, no matter how silent the operations of the mill. Properly conducted, decently appointed, and orderly managed stores, shops, factories, and business houses erected in close proximity to residential quarters frequently cause great depreciation in values; in the popular sense, they cause damage. But in such cases the annoyances--the inconveniences--occasioning the loss in value are not actionable, because they arise from lawful uses. The owners of these establishments are as much entitled to the use and enjoyment of their property as is the owner of the residence property reduced in value by their presence.' In Standard Oil Co. v. Kahn, 165 Ga. 575, 580, 141 S.E. 643, 645, it was said 'In determining this feature of the case [noises at filling stations], we must...