Reed v. White, 17364

• Decision Date: 14 February 1951
• Docket Number: No. 17364,17364
• Citation: 63 S.E.2d 597,207 Ga. 623
• Parties: REED v. WHITE et al.
• Court: Georgia Supreme Court

Page 597

63 S.E.2d 597

207 Ga. 623

REED v. WHITE et al.

No. 17364.

Supreme Court of Georgia.

Feb. 14, 1951.

Geo. D. Anderson, Vandiviere & Smith, H. C. Schroeder, and Raymond M. Reed, all of Marietta, for plaintiff in error.

Harry E. Williams, Marietta, Henderson & Burtz, Canton, for defendants in error.

Syllabus Opinion by the Court.

CANDLER, Justice.

This is a suit brought in Cobb Superior Court by G. W. White and others against B. F. Reed, Jr., doing business as Reed Building & Supply Company to enjoin the latter from operating a lumber manufacturing plant alleged to be in violation of specified zoning laws and ordinances. A general demurrer interposed to the original petition was overruled, and certain special demurrers were also overruled, but other special demurrers were sustained. The defendant timely excepted pendente lite to the rulings adverse to him, and error is assigned thereon in the final bill of exceptions. Count two was added to the petition by an amendment, which also designated the original petition as count one. General and special demurrers filed to the petition as amended and to count two were overruled on all grounds. The defendant timely excepted pendente lite, and error is assigned thereon in his writ of error. Subject to the demurrers, the defendant filed answers to the original petition and to count two. After evidence was submitted in behalf of all parties, the trial judge, upon motion, directed a verdict in favor of the plaintiffs upon count two, and a decree was entered enjoining the defendant from operating any machinery for the manufacture or processing of lumber upon the premises. Thereupon, the plaintiffs dismissed count one of the petition. The defendant filed a motion for new trial on the general grounds, and amended the same by adding several special grounds. To the judgment overruling said motion the defendant excepts to this court. Held:

1. The plaintiff in error makes a written motion for the Supreme Court, by mandate, to direct the court below 'to pass an order vacating the permanent injunction as granted * * * or, in the alternative, that this court pass a final judgment in said case decreeing the property zoned for business and manufacturing purposes'; and the movant bases his motion upon an attached copy of a zoning resolution passed by the Cobb County Planning Commission on October 3, 1950 (subsequently to the verdict and decree dated July 20 and 21, 1950, based upon a zoning status then appearing), purporting to zone the same property 'from its present zoning status to business and industry and manufacturing purposes.' In response, the defendants in error show that the said zoning dated October 3, 1950, is pending on appeal to Cobb Superior Court and undecided. Under article 6, section 1, paragraph 4 of the Constitution of Georgia of 1945, Code Ann. § 2-3704, the Supreme Court is a court only for the correction of errors of law, as shown by the record, made prior to the writ of error. This court cannot, in the circumstances here presented, grant a motion of the kind sought. Therefore said motion is denied.

2. Property owners residing within a restricted area may properly apply for an injunction against the operation of a business therein in violation of zoning laws and ordinances. Snow v. Johnston, 197 Ga. 146(1, 2) 28 S.E.2d 270; Barton v. Hardin, 204 Ga. 108(4), 48 S.E.2d 882; Graham v. Phinizy, 204 Ga. 638(2), 51 S.E.2d 451. Measured by the above principle, the averments of the original petition in the instant case, that zoning from residence to business was granted upon the defendant's representations at the hearing before the Cobb County Planning Commission that he would use the premises for dealing in finished building supplies only, and not for the manufacture or processing of lumber, to which latter purpose he actually put the property, were sufficient allegations to withstand the general demurrer, urged on the grounds that no cause of action was set out and no facts were stated which would authorize the grant of equitable relief. An appeal to the Board of Zoning Appeals of Cobb County was not an adequate remedy at law or available to the plaintiffs because of the pleaded conduct of the defendant in representing the restricted use to which he expected to put the property and in his waiting until after the time allowed for appeal before installing and using machinery to process lumber; and it was not error for the court to overrule the ground of demurrer contending that such right existed.

3. Count two of the petition alleges in more detail the contention that the permit for business, under the circumstances it was issued, does not authorize the defendant to operate lumber-manufacturing plant using machinery; and, although nuisance allegations in the first count are not repeated, said count two is an amplification of the details and circumstances of the same transaction declared upon in the original petition and is sufficient to satisfy the rule of enough to amend by. Code, § 81-1302; Ellison v. Georgia Railroad & Banking Co., 87 Ga. 691, 13 S.E. 809; City of Columbus v. Anglin, 120 Ga. 785(5), 48 S.E. 318; Calhoun v. Edwards, 202 Ga. 95(1), 42 S.E.2d 426; Cooper v. Robert Portner Brewing Co., 112 Ga. 894(4), 38 S.E. 91; Spence v. Erwin, 200 Ga. 672, 38 S.E.2d 394; Maxwell v. Harrison, 8 Ga. 61(2). There were enough of the essential averments of the original petition restated in count two to enable it to withstand the general demurrer urged on the same grounds discussed in the preceding division hereof, to say nothing of the amplification that made count two less subject to attack than the original petition. It was not error, therefore, for the trial judge to overrule said portions of the general demurrers interposed to the petition as amended and to count two.

(a) None of the special demurrers are meritorious, and there was no error in overruling any of them.

4. The act creating the Cobb County Planning Commission, Ga.L. 1943, pages 902-8, was amended by Ga. Laws 1949, pages 1499-1505, with a new paragraph reading as follows: 'Section 11(a): In addition to all other powers, said Commission is hereby authorized and empowered to make, adopt, promulgate, and from time to time, amend, extend, and add to regulations effective in the limits of said county restricting height, number of stories, design and architecture, size and floor space, specifications and floor plan of buildings and other structures, and the use, conditions of use, or occupancy of land for trade, industry, residence, recreation, transportation, agriculture, or any other purposes; to provide for county planning; to provide for the regulation of subdivision of land; and to establish set-back lines for buildings and structures along the streets, lands, avenues and roads, including power and authority to divide the county into districts of such number, shape and area as may be deemed...