Mayor v. Mulligan

• Decision Date: 28 January 1895
• Citation: 22 S.E. 621,95 Ga. 323
• Parties: MAYOR, ETC., OF SAVANNAH. v. MULLIGAN.
• Court: Georgia Supreme Court

22 S.E. 621

95 Ga. 323

MAYOR, ETC., OF SAVANNAH.

v.MULLIGAN.

Supreme Court of Georgia.

Jan. 28, 1895.

Abatement of Nuisance—Liability of City for Destruction of Property by Health Officer.

1. The municipal authorities of a city have no right to destroy the private property of a citizen for the public good without compensating him for the loss thus occasioned, unless the property is itself a nuisance endangering the public health or safety. In that event it may be destroyed by such municipal authorities, without paying the owner its value, if the charter of the city confers upon them the power to abate such nuisances; but even then, unless the property is first condemned as a nuisance by appropriate proceedings, its destruction will be at the peril of the municipal authorities; and, when sued for its value, the burden is on them of showing that it was in fact a nuisance, and that its destruction was really necessary to the public health or safety. In cases of emergency the destruction may properly be ordered without a preliminary condemnation, but the municipal authorities will in that event carry the same burden.

2. In the present case the evidence showed conclusively and beyond question that the property destroyed was in fact a nuisance, endangering the public health, and that the mayor and aldermen of Savannah had due authority to abate it. Consequently the destruction of the property was lawful, and the owner was not entitled to recover its value from the city.

(Syllabus by the Court.)

Error from superior court, Chatham county; R. Falligant, Judge.

Action by Thomas Mulligan against the mayor, etc., of the city of Savannah. Plaintiff had judgment, and defendant brings error. Reversed.

S. B. Adams, for plaintiff in error.

Gig-nilliat & Stubbs, for defendant in error.

SIMMONS, C. J. This was an action against the municipal corporation of the city of Savannah for the value of a feather bed, pillows, and mattress destroyed by a sanitary inspector of that city, under orders of its health officer. On certiorari the superior court ruled that the city was liable to the plaintiff, under section 2226 of the Code; and to this ruling the city excepted. The section referred to is as follows: "Analogous to the right of eminent domain is the power from necessity vested in corporate authorities of cities, towns and counties, to interfere with and sometimes destroy the private property of the citizen for the public good, such as the destruction of houses to prevent the extension of a conflagration, or the taking possession of buildings to prevent the spreading of contagious diseases. In all such cases, any damages accruing to the owner from such acts, and which would not otherwise have been sustained, must be paid by such corporation." We do not think the section above quoted is applicable to this case. Under the ruling of this court in Dunbar v. City Council of Augusta, 90 Ga. 390, 17 S. E. 907, a city...