Mayor v. Wilson

• Decision Date: 30 May 1903
• Citation: 118 Ga. 100,44 S.E. 830
• Parties: MAYOR, ETC., OF DALTON. v. WILSON.
• Court: Georgia Supreme Court

44 S.E. 830

118 Ga. 100

MAYOR, ETC., OF DALTON.

v.WILSON.

Supreme Court of Georgia.

May 30, 1903.

MUNICIPAL CORPORATIONS—NUISANCE—FAILURE TO ABATE—PLEADING.

1. A municipal corporation is not liable for the failure or refusal to exercise its charter powerto abate a nuisance maintained by a private individual upon private property, and not of such a character as to amount to an obstruction of a public street or to imperil the safety of travelers thereon; and this is true notwithstanding the nuisance in question may consist of a sewer which the municipal authorities allowed to be constructed by a private individual in part under the streets of the city, that portion of the sewer under the public streets not being itself the cause of any damage either to the public or to any private individual.

2. The petition in the present case, construed most strongly against the pleader, does not set forth a cause of action against the municipality for maintaining a nuisance. It is, at most, a complaint that the municipality consented to the erection of a nuisance by a private individual, and has failed and refused to abate the same.

(Syllabus by the Court.)

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by W. H. Wilson against the mayor and council of Dalton. Judgment for plaintiff, and defendant brings error. Reversed.

R. J. & J. McCamy, for plaintiff in error.

Shumate & Maddox, for defendant in error.

COBB, J. Wilson brought an action against the mayor and council of the city of Dalton, alleging, in substance, as follows: Petitioner, with his family, consisting of a wife and several children, owns and resides upon a lot in the city of Dalton. There is a ditch within about 20 or 25 yards from the western end of petitioner's lot, and at the time he commenced to live thereon the water in the ditch ran freely and unobstructed along the ditch, and little or no fecal matter gathered therein. Por a number of years petitioner and his family were healthy, and free from malarial diseases. Several years after petitioner began to reside on the lot referred to, the Hotel Dalton was built, and "with the advice and consent, and, as petitioner charges and believes, with the co-operation, of the mayor and council of the city of Dalton, " a sewer was constructed from the hotel, and emptied into the ditch near his property. By reason of the construction of this sewer, and on account of the further fact that there is not a great deal of fall to the ditch, foul and fecal matter has accumulated in the bottom of the ditch to the depth of several inches, the result of which is to cause continued illness in petitioner's family from malarial diseases, to render it impossible, especially at certain seasons of the year, for petitioner and his family to reside at their home, and to seriously impair the market value of his property. Petitioner made application to the city authorities to abate the nuisance, but they have failed and refused to do so, notwithstanding they have passed upon the question and adjudged the ditch to be a nuisance. The action of the mayor and council in allowing the ditch to remain in its unhealthy and filthy condition, and their refusal to abate the same as a nuisance, is gross negligence on their part, on account of which action petitioner claims damages, having previously filed his claim therefor with the mayor and council, as the law requires. Certain special demurrers to the petition having been filed, the plaintiff amended, so as to allege that, while the minutes of the council do not show any agreement with the Hotel Dalton in regard to the construction of the sewer, there was in fact an agreement, and the mayor and council consented that the sewer might be built, and thereby, as petitioner charges, became a party to the construction and direction of the construction of the sewer, as well as the place where it was to empty, well knowing at the time where the contents of the sewer would be emptied. It is also alleged that the Hotel Dalton made with the city of Dalton a contract to indemnify it against damages resulting from the construction of the sewer and its becoming a nuisance, this being a recognition on the part of the city that the sewer would become a nuisance. It is not alleged, either in the petition or the amendment, that the sewer was constructed along a public street, though there is an allegation in the amendment that the sewer crossed the streets of the city, and that this was done with the permission and consent of the city authorities. It is also alleged that the charter of the city of Dalton gives the mayor and council absolute authority to abate nuisances, and that their failure to abate a nuisance in a given instance is a ministerial act, for the breach of which the municipality is liable. In addition to the special demurrers above referred to, the defendant demurred generally to the petition, and, its demurrers being overruled, it excepted.

"Municipal corporations are not liable for failure to perform, or for errors in performing, their legislative or judicial powers." Pol. Code, § 748. See, also, Rivers v. Augusta, 65 Ga. 376, 38 Am. Rep. 787; Collins v. Macon, 69 Ga. 542; Wright v. Augusta, 78 Ga. 241, 6 Am. St. Rep. 256; Love v. Atlanta, 95 Ga. 129, 22 S. E. 29, 51 Am. St. Rep. 64; Nisbet v. Atlanta, 97 Ga. 650, 25 S. E. 173; Wyatt v. Rome, 105 Ga. 312, 31 S. E. 188, 42 L. R. A. 180, 70 Am. St. Rep. 41; Tarbutton v. Tennille, 110 Ga. 90, 35 S. E. 282; Gray v. Griffin, 111 Ga. 361, 36 S. E. 979, 51 L. R. A. 720; City Council of Augusta v. Owens, 111 Ga. 464, 477, 36 S. E. 830; Same v. Little, 115 Ga. 124, 41 S. E. 238; Nicholson v. Detroit (Mich.) 56 L. R. A. 601; Peterson v. Wilmington, 130 N. C. 76, 40 S. E. 853, 56 L. R. A. 959; Barron v. Detroit (Mich.) 19 L. R. A. 452, and notes; McDade v. Chester, 117 Pa. 414, 12 Atl. 421, 2 Am. St. Rep. 681. A municipal corporation is, however, liable "for neglect to perform, or for improper or unskillful performance of their ministerial duties." Pol. Code, § 748. See, also, Mayor of Savannah v. Spears, 66 Ga. 304; Collins v. Macon, supra; Smith v. Atlanta, 75 Ga. 110; City of Greensboro v. McGibbony, 93 Ga. 672, 20 S. E. 37. In the case of Jones v. Wil-liamsburg, 97 Va. 722, 34 S. E. 883, 47 L. R. A. 294, Riely, J., in referring to the distinction above stated, uses the following apt and appropriate language: "A municipal corporation has a dual character, the one public and the other private, and exercises correspondingly twofold functions, the one governmental and legislative, and the other private and ministerial. In its public character, it acts as an agency of the state, to enable it the better to govern that portion of its people residing within the municipality; and to this end there is granted to or imposed upon it, by the charter of its creation, powers and duties to be exercised and performed exclusively for public governmental purposes. These...