Poultryland, Inc. v. Anderson
| Decision Date | 02 April 1946 |
| Docket Number | 15398. |
| Citation | 37 S.E.2d 785,200 Ga. 549 |
| Parties | POULTRYLAND, Inc., et al. v. ANDERSON et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The petition as amended set forth a cause of action against the defendants to enjoin them from maintaining a continuing nuisance per accidens by the operation of a plant, within a residential and business section of a municipality, for the manufacture of material for hog and chicken feed from the entrails of chickens and other fowls and animals, in processing which odors, gases and vapors were emitted from the plant and caused great discomfort and damage to persons in their residences and places of business within the community.
(a) The petition as amended, alleging that the nuisance was a continuing one and affected injuriously the comfort and health of the petitioners in described particulars, and unless enjoined would cause irreparable damage to them and result in a multiplicity of suits, was not subject to the ground of demurrer that it showed on its face that the petitioners had an adequate remedy at law.
(b) The petition as amended did not show that the defendant corporation was an alienee of the nuisance, but showed that it was the creator thereof, and was not subject to the ground of demurrer that it was defective in not showing that a request, prior to the filing of the action, had been made to abate the nuisance.
2. Under the Code, § 38-1703, the sequestration of witnesses is mandatory in all cases upon a timely request by any party to the cause, and on the present interlocutory hearing the refusal of the trial judge to grant such request by counsel for the defendants deprived the defendants of a substantial and positive right, rendering all subsequent proceedings nugatory and requiring a new hearing on the merits.
J F. Anderson and others filed an equitable petition against Poultryland, Inc., a corporation of this State having its office and principal place of business in Hall County, Georgia, and Jesse D. Jewell, alleging as follows The petition further alleged that the stench from said gases and vapors arising from the said plant is so strong and great that the same can be and has been smelled as far as a mile and a half from the said plant and is so strong that it permeates the clothing of the petitioners and their employees while they are engaged at work at their places of business, making it necessary for them to change their clothing in order to get rid of the said odors. The stench and odors from the said gases and vapors is so sickening and overpowering that after the petitioners have inhaled the same they become nauseated and are unable to eat their food with any relish, and on some occasions they have not been able to retain the said food after they have eaten it. In an effort to rid themselves of these noxious, offensive, and unbearable gases and vapors and the odor thereof, the petitioners have been forced to close the doors and windows of their homes and places of business, but the atmosphere and air are so pervaded by the said gases and vapors and their offensive odors that such efforts on the part of the petitioners are unavailing, and the pillows, mattresses, and bed clothing in their homes, located in the vicinity of the said plant, are so contaminated by the said odors that the petitioners can not sleep on or use the same with any degree of comfort whatever. All of the petitioners occupied their places of business and their homes, which are in the vicinity of the said plant, before it was erected and began operation, and up to that time the said homes and places of business were healthy and free from the said vile, offensive, and noxious odors, and the petitioners used and occupied them free from the discomfort now caused as aforesaid by the maintenance and operation of the said plant. The operation and maintenance of the said plant as aforesaid have rendered the homes and places of business of the petitioners very unhealthy and undesirable and have deprived them of the peace, comfort, happiness, and enjoyment of their places of business and homes, and have deprived and are now depriving them of the right to live and carry on their businesses and occupations unmolested and free from the harmful, unhealthy, unjurious, and unpleasant conditions created by the operation and maintenance of the said plant. The maintenance and operation of the said plant is a continuing and constant nuisance. If the said plant is allowed to continue to operate and the said nuisance is not enjoined, the petitioners will be forced to abandon their places of business and their homes in the vicinity of the said plant, and will be unable to employ hands to continue to work in such unhealthy, disagreeable, and unpleasant surroundings. The acts of the defendants in permitting the erection and carrying on operation, and maintenance of the said plant and the permitting of the same on the property of the defendant Jewell have caused and are now causing the petitioners irreparable and constantly recurring damages, and the same will result in a multiplicity of actions if the said acts are not restrained and enjoined. The petitioners have no adequate remedy at law, and unless equity comes to their aid they will be remediless. The carcasses of animals as large as mules and horses are allowed to remain exposed at the said plant for several days at a time, thereby adding to the unpleasant, unsightly, and malodorous conditions existing there. The prayers were, that the defendants be enjoined from operating the plant and continuing the said nuisance, for process, and for such other and further relief as the petitioners may in equity and good conscience be entitled to.
The defendant Jewell filed a plea and answer, and also demurred on the ground that no cause of action was set forth against him, and on several special grounds.
The defendant Poultryland, Inc., filed a plea and answer, and also demurred as follows: 1. No cause of action is set forth against it. 2. It appears from the face of the petition that the defendant is an alienee of the property referred to, and it alleges no request to abate the alleged nuisance as having been made upon the defendant prior to the filing of the petition. 3. The petition shows that, if the petitioners have any right of action at all, they have a complete and adequate remedy at law. This defendant also demurred on several special grounds.
The petitioners filed an amendment to the petition and alleged the following: After the erection and construction of the plant complained of in this cause and the lease of the same by the defendant, Jesse D. Jewell, to the defendant Poultryland, Inc., the said Poultryland, Inc., with the full knowledge and consent and with the help and assistance of the defendant, Jesse D. Jewell, the owner of the property on which said plant is located and of said plant, changed the character, structure, and nature of said nuisance and greatly increased the amount of noxious vapors and gases emitted by said plant, in the following manner and ways. When the plant was first erected, the defendant made an effort to dispose of the said noxious vapors and gases by turning the same into the sewer system of Pacolet Manufacturing Company, which sewer system serves the community and cotton-mill villages, known as New Holland, Georgia, and also that part of the residential section of the City of Gainesville, Georgia, occupied by colored people and known as the 'Government Houses.' As a part of this system of disposing of the said vapors and gases, the defendants erected a trap or vent on said building and premises for the purpose of keeping such vapors and the obnoxious odors from the same out of the said sewer system while allowing the water and other waste to go through the said sewer system. The foul and obnoxious vapors and odors and gases coming from this trap or vent were so disagreeable and destructive of the comfort of the petitioners and others living and working in the community in which the plant is located that the defendants were compelled to and did close up this trap or vent or remove the same, and allowed the said foul and noxious vapors and ill-smelling gases to flow or go into the said sewer system, with the result that they poured out through the manholes of the sewer system, causing a terrible stench to arise therefrom and causing green flies to gather in great swarms about and around the said manholes. In an...
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...75 Am.Jur.2d, "Trials," §§ 240, 241; accord Lackey v. State, 246 Ga. 331, 334-335(5), 271 S.E.2d 478 (1980); Poultryland v. Anderson, 200 Ga. 549, 561-562(2), 37 S.E.2d 785 (1946); Gen. Oglethorpe Hotel Co. v. Lanier, 99 Ga.App. 401, 402(2), 108 S.E.2d 769 (1959). As a matter of right a par......
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...or violated, the presumption of law is that he has been injured unless the contrary plainly appears." Poultryland, Inc. v. Anderson, 200 Ga. 549, 562, 37 S.E.2d 785 (1946). Applying Poultryland, supra, in another civil case, yet one related to voir dire, in Hill v. Crowell, 244 Ga. 294(2), ......
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