Hill v. Mcburney Oil & Fertilizer Co

• Decision Date: 26 February 1901
• Court: Georgia Supreme Court
• Parties: HILL et al. v. McBURNEY OIL & FERTILIZER CO.

38 S.E. 42

112 Ga. 788

HILL et al.

v.McBURNEY OIL & FERTILIZER CO.

Supreme Court of Georgia.

Feb. 26, 1901.

NUISANCE—ABATEMENT—INJUNCTION—AFFIDAVITS—BLOWING FACTORY WHISTLE.

1. Where it appears that a majority of a town council are disqualified, by reason of removal from town, interest in the case, or relationship to the parties, to abate an alleged nuisance under section 4762 of the Civil Code, equity will take jurisdiction.

2. At an interlocutory hearing of an application for an injunction, affidavits which do not state the court or case, and which do not show affirmatively that they were made to be used in that particular case, are inadmissible in evidence. It is error for the judge, over proper objection, to read and consider such affidavits in making up his judgment granting or refusing the injunction.

3. All of the affidavits offered by the defendant were inadmissible because of the defect above described, while the petition and affidavits of the plaintiffs showed that the factory whistle, the use of which in a populous community was sought to be enjoined, was blown at unseasonable hours, was entirely unnecessary, and was so loud, harsh, and terrific as seriously to interfere with plaintiffs' reasonable enjoyment of their habitations and cause them.special damage. The blowing of the whistle was therefore shown to be a nuisance, and the judge erred in not granting the injunction.

(Syllabus by the Court.)

Error from superior court Warren county; S. Reese, Judge.

Suit by P. M. Hill and others against the McBurney Oil & Fertilizer Company. Judgment for defendant and plaintiffs bring error. Reversed.

Foster & Butler and E. P. Davis, for plaintiffs in error.

Ira E. Farmer, for defendant in error.

SIMMONS, C. J. Hill and others applied for an injunction to restrain the McBurney Oil & Fertilizer Company from blowing a certain steam whistle. The petition alleged that the plant of the defendant was situated in a populous residence community of the town of Warrenton, and that the dwellings of the plaintiffs were situated near by; that the steam whistle used in connection with the plant was "loud, shrill, shrieking, discordant startling, and terrific, " and its blasts such as to injure the health of plaintiffs, disturb their sleep, and seriously interfere with their reasonable enjoyment of their habitations; that the damage to the plaintiffs was, because of the proximity of their homes, special, and not shared by the public generally; that the whistle was blown at unseasonable hours, particularly in the very early morning; that the use of the whistle was entirely unnecessary; that the use of the whistle was a continuing nuisance, causing injury every day; that to sue for damages would necessitate a multiplicity of suits; and that the injury to plaintiffs was great, but not susceptible of adequate compensation in damages. The plaintiffs also made certain allegations, which will be presently discussed, to show why resort was not had to the remedy provided by statute for the abatement of nuisances In towns and cities. The petition prayed that the defendant be enjoined from blowing the whistle at certain specified times in the early morning, and at all other times; but on the hearing the plaintiffs expressly abandoned all objections to the moderate blowing of the whistle at noon, and at the time of the usual afternoon signal. The defendant answered, admitting the moderate use of the whistle, but denying most of the material allegations of the petition. The answer also alleged that the plaintiffs had an ample and complete remedy at law, and that the plaintiffs should avail themselves of the statutory remedy if the whistle could be considered as a nuisance. On the interlocutory hearing, the plaintiffs introduced in evidence a large number of affidavits tending to sustain fully the allegations of the petition. The defendant offered to introduce a great many affidavits, every one of which was objected to by the plaintiffs on the ground that It was not entitled in the case. "The court, " it is stated in the bill of exceptions, "ruled that it must appear in the affidavit in what case the witness was sworn. As the court was to reserve its decision, the defendant then informally filed all of its affidavits with the court, without reading them, which the court identified as affidavits used in the case, and which the court considered in rendering its decision." The judge denied and refused the injunction, and the plaintiffs excepted.

1. It was argued here that the refusal of the injunction was proper, because the plaintiffs had an adequate and complete remedy at law, and that if the use of the whistle was a nuisance, it should have been abated by proceedings instituted under section 4762 of the Civil Code. That section provides that if a nuisance complained of exists in a town or city, it may be abated and removed by order of the municipal authorities. Ordl-narily, this would have been the plaintiffs' remedy (Broomhead v. Grant, 83 Ga. 451, 10 S. E. 116); but the pleadings and evidence in the present case show that this remedy was not open to the plaintiffs. They alleged and proved that the town council was composed of five commissioners, and that of these one was a part owner of the defendant's mill, another was a brother-in-law of such part owner, and a third had removed from the town and become a resident in a town in another county. They showed that they had made application to the town council for the abatement of the nuisance, and that the town council had refused to act. They showed that the majority of the council were disqualified, as above stated, from acting in the premises; that the minority could not legally act; and that the statutory remedy was therefore inadequate to their needs. None of this was denied or contradicted by any evidence which the judge could properly have considered. We think that the plaintiffs showed reasons amply sufficient to justify a resort to some remedy other than that provided in section 4762 of the Civil Code. In the absepce of the statutory remedy, a court of equity should take jurisdiction of a case like this. In the first place, the statutory remedy was not available or feasible under the circumstances of the case. In the next place, if the nuisance was not abated it would continue, and would inflict on the plaintiffs injuries which could not be readily ascertained or adequately compensated in damages by a suit at law. In the...