Lederle v. City Of Atlanta, (No. 5782.)

• Decision Date: 30 June 1927
• Docket Number: (No. 5782.)
• Citation: 164 Ga. 440,138 S.E. 910
• Parties: LEDERLE. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

164 Ga. 440

138 S.E. 910

LEDERLE.

v.CITY OF ATLANTA.

(No. 5782.)

Supreme Court of Georgia.

June 30, 1927.

(Syllabus by Editorial Staff.)

Error from Superior 'Court, Fulton County; Edgar E. Pomeroy, Judge.

. Petition for injunction by Frank Lederle against the City of Atlanta. Petition was dismissed on demurrer, and plaintiff brings error. Reversed.

On December 1, 1916, Lederle and the city of Atlanta, in consideration of the mutual covenants therein contained, entered into a contract in writing, whereby Lederle was given the right to sell or dispose of the sludge accumulating at the three disposal plants of the city, during the period beginning December 1, 1916, and ending December 31, 1917, with the privilege to lederle of renewing the contract for an additional period of five years upon the same terms, in which event Lederle was to have the right and privilege of the disposal of the annual output of sludge of said plants for the full period of the renewed contract. By this contract the city agreed to give to Lederle the sludge accumulating at said plants free of charge, and Lederle agreed to move the sludge from the sludge beds as directed by the officer or employee of the city having charge of said disposal plants. It was further agreed that the acceptance of said sludge in the beds and its removal therefrom as directed by said official or employee would save the city 15 cents per cubic yard, which the city would otherwise have to pay for its removal and disposal. Lederle further agreed, in view of the benefits arising to him, or the profits that might accrue from the disposal of said sludge, to keep the sludge beds free of sludge as far as possible, and to maintain and care for said beds as directed by the official or employee of the city in charge of the same, meaning by this the keeping of the beds resanded, keeping grass from growing thereon, and similar work, as might be ordered by said official or employee. Lederle especially agreed and undertook not to allow the sludge to ac-cumulate around said plants in such amounts as said official or employee of the city might deem excessive, of which said official or employee was to be the exclusive judge. The city further agreed to permit Lederle or his assignees to construct whatever buildings might be necessary for the handling of said sludge, provided the location of the same was approved by said official or employee, and that in no event should they be located so as to interfere with the operation of the sewage plants. The city further agreed that Lederle or his assignees might be permitted to remove said buildings from the property of the city at the termination of the contract; that it would be his duty to remove them at his own expense, and restore the property to the city in its present condition at his expense. By the contract, should Lederle or his assignees fail to carry out any of its provisions, the city had the right on its own motion, on 10 days' notice to him or his assignees, to cancel the contract, and, when canceled, any buildings on the property should be removed therefrom by him or his assignees, and the property restored to the city in its present condition at the expense of Lederle or his assignees.

Lederle exercised his privilege of renewal, and the contract was renewed for a period of five years, on December 31, 1917. On December 31, 1922, by mutual consent of Lederle and the city, this contract was continued in force and effect upon the same terms and conditions as therein set out. Thereafter the general council of the city passed a resolution that on and after August 1, 1925, the said contract should terminate and be at an end, and that the plaintiff would not be allowed on and after that date to remove from the sewage disposal beds any of the sludge thereon. On July 2, 1925, Lederle was notified by the chief of construction of the city of said resolution. During the years said contract was in force there had been accumulated at the Peachtree creek plant a large deposit or supply of sludge, through the efforts of Lederle, and at an expenditure.by him of considerable money and labor. It was deposited on the property of the city, which the city does not need for the present disposal of its sludge and for the proper operation of its disposal plant. At the time Lederle took over the disposal of the sludge from said plants its disposal presented quite a problem to the city, and its removal was creating an expense to the city, from which expense the city was relieved by the contract with Lederle. He has expended a large sum of money in keeping the drying beds of said plant clean and ready for use, and in storing the sludge in the deposits where it is now stored. The sludge at the Peachtree creek and Proctor creek plants, amounting to approximately 100 tons, is the property of Lederle, and the result of his labor under said contract, and said deposits have been built up at an expense to him. The city has informed Lederle that it intends to use said sludge deposit which belongs to him, and is threatening to do so after August 1, 1925. Unless restrained from so doing, the city will use and dissipate said sludge deposits, to his irreparable damage. He filed his petition against the city, in which he made the foregoing allegations, and prayed that the city be enjoined from using said sludge deposits at both of said plants, and from interfering with him in removing said sludge deposit bed, and for judgment for the sum of $1,000 for the services rendered by him, as set out in his petition.

The city demurred to this petition on the grounds: (a) That it sets forth no cause of action, either legal or equitable; (b) that the facts alleged do not entitle the plaintiff to the relief sought; (c) that the contract under which the plaintiff claims the right to remove said sludge deposits has already expired; and (d) that the plaintiff has a full, complete, and adequate remedy at law for any wrong thus...