Lancaster v. Monroe

• Decision Date: 31 August 1932
• Docket Number: No. 21956.,21956.
• Citation: 45 Ga.App. 496,165 S.E. 302
• Parties: LANCASTER. v. MONROE et al.
• Court: Georgia Court of Appeals

45 Ga.App. 496

165 S.E. 302

LANCASTER.

v.MONROE et al.

No. 21956.

Court of Appeals of Georgia,

Division No. 1.

Aug. 31, 1932.

Syllabus by the Court.

1. In an action for damages because of a nuisance, if the nuisance is abatable "and when abated the injury occasioned by its maintenance will cease, the plaintiff can recover merely the damages which he has sustained within the period prescribed by the statute of limitations for bringing a suit of this character. But if the nuisance is of a permanent and continuing character, the plaintiff may recover in one action all the damages, past and future, which the maintenance of the nuisance has occasioned and will occasion in the future."

2. It is a nuisance to maintain tanks of several thousand gallons capacity in which crude oils and petroleum products are stored and where a crude oil business is operated, within 5 or 6 feet from plaintiff's property line and within 20 or 25 feet of his dwelling house, from which tanks oils and grease flow downhill onto plaintiff's property, and from which come fumes, gases, and odors "disagreeable to the smell and hurtful to health."

3. The petition as originally drawn was subject to the special demurrers lodged against it.

4. "The test of the sufficiency of a petition as against a general demurrer, is whether the defendant can admit all the allegations made therein and escape liability." The petition in the instant case, as amended, alleged an actionable nuisance. "Though in respect of the measure of damages the petition was imperfectly * * * drawn, we cannot say that it should have been unconditionally dismissed, as on general demurrer, because of such defect."

BROYLES, C. J., dissenting.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by W. F. Lancaster against T. J. Monroe and another. Judgment for defendants, and plaintiff brings error.

Reversed.

Sam E. Murrell and K. R. Murrell, both of Atlanta, for plaintiff in error.

Wm. J. Davis, Jr., of Atlanta, for defendants in error.

LUKE, J.

W. F. Lancaster brought suit for damages against T. J. Monroe and Seaboard Air-Line Railway Company. Monroe demurred generally and specially to the petition. The court, Hon. John D. Humphries presiding, sustained certain special demurrers, stated in his order that "the general demurrer is not now passed upon, " and gave the plaintiff ten days to amend, and upon his failure to do so the suit to stand dismissed. Plaintiff in error excepted pendente lite to this ruling, and in his bill of exceptions assigns error on the pendente lite exceptions. It suffices to say that the court properly sustained these special demurrers, requiring the plaintiff to be more specific and definite in the allegations of his petition and to eliminate certain immaterial and irrelevant allegations; and there is no merit in the assignment of error on that ruling. In view of what follows it is well to here point out that while the demurrer above referred to contended that no damage was shown, it made no complaint of the measure of damages alleged in the petition, nor called for an amendment in that respect.

The plaintiff did amend within the time specified in the court's order; and the petition, as amended, alleged in substance that plaintiff owned certain residential property consisting of a house and lot; that the Seaboard Air-Line Railway Company owned a strip of land adjacent to plaintiff's property; that T. J. Monroe, with the consent and knowledge of the railway company, "placed two certain crude-oil tanks upon the property of the defendant Seaboard Air Line Railway Company, a corporation, adjacent to the property of petitioner, within five or six feet of plaintiff's property line and within 20 to 25 feet of his said dwelling house, * * * and that the said defendant T. J. Monroe has been operating a crude oil business or concern on said property adjacent to plaintiff's property, and stores in said tank crude oils and petroleum products of several thousand gallons capacity; * * * that said crude oil tanks are elevated above the ground and that the property upon which the same is situated slopes down toward plaintiff's property, having an elevation of approximately three or four feet sloping toward plaintiff's property, and that said tanks have a drain-pipe running from the end thereof for the purpose of draining said oils, and that the stop-cock of said pipes is not secure and is leaky and causes oils to be dripped and poured on the ground and runs on plaintiff's property and in his well located thereon, and that said tanks have a vent on the top of same and liberates offensive odors, thereby causing certain offensive odors and gases to be liberated therefrom, and in wet and rainy weather, the water flowing down hill toward petitioner's property and upon the same catches said oils and greases and flows upon plaintiff's prop erty and seeps in and upon same, and that said offensive odors, gases, oils, and greases are so liberated that they come onto plaintiff's property, and that said fumes, odors, and gases, as well as oils and greases seeping upon plaintiff's property, is a nuisance and causes plaintiff's property to be unfit for dwelling; * * * that the defendant T. J. Monroe washes out said tanks with petroleum products, and drains same by allowing the washing and oils and greases to flow on the ground without catching the same, but allows the same to pour upon the ground and flowing down hill runs in and upon plaintiff's property;" "that said fumes and odors and gases, as well as oils and greases seeping upon plaintiff's property, is a nuisance and causes plaintiff's property to be unfit for dwelling, * * * and that the same is a continuing nuisance, rendering plaintiff's property unfit for dwelling and petitioner has been unable to rent said property to a...