Savannah, F. & W. Ry. Co. v. Gill

• Court: Georgia Supreme Court
• Writing for the Court: FISH, P.J.
• Citation: Savannah, F. & W. Ry. Co. v. Gill, 118 Ga. 737, 45 S.E. 623 (Ga. 1903)
• Decision Date: 30 October 1903
• Parties: SAVANNAH, F. & W. RY. CO. v. GILL.

45 S.E. 623

118 Ga. 737

SAVANNAH, F. & W. RY. CO. v. GILL.

Supreme Court of Georgia

October 30, 1903

Syllabus by the Court.

1. There was no error in overruling the motion for a continuance.

2. Under the provisions of Civ. Code 1895, § 4760, two or more justices of the peace, upon the opinion of twelve freeholders, have jurisdiction to abate a public nuisance which tends to the immediate annoyance of the citizens in general, and which causes special damage to a citizen, in which the public do not participate. Macon & Brunswick R Co. v. State ex rel. Pate, 50 Ga. 156, reviewed, and overruled.

3. The private citizen specially damaged by such nuisance may proceed in his own name and behalf to have the same abated.

4. An assignment of error, in a petition for certiorari, "that said twelve freeholders were not summoned in accordance with law; that the selection of said freeholders was irregular and illegal, and contrary to the constitutional rights of [the defendant] under the Constitution of the state of Georgia and under the Constitution of the United States," and that the justices of the peace erred in overruling a motion to dismiss the proceedings to abate the nuisance upon such grounds--was not sufficiently specific, and therefore presented no question for determination by the judge of the superior court.

5. For the same reason there was no merit in an assignment of error "that the sections of the Code of Georgia under the terms of which the said twelve freeholders were chosen summoned, and sworn *** are unconstitutional, and are null and void."

6. The order of the board of commissioners of roads and revenues purporting to establish the road in question as a public road, was admissible in evidence, in connection with the parol evidence as to the prescriptive right of the public to the free and unobstructed use of such road, though the order was unaccompanied by the record of the proceedings upon which it was based.

Error from Superior Court, Liberty County; Paul E. Seabrook, Judge.

Action by J. T. Gill against the Savannah, Florida & Western Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Shelby Myrick and W. L. Clay, for plaintiff in error.

Donald Fraser, for defendant in error.

FISH P.J.

J. T. Gill filed a petition under Civ. Code 1895, § 4760, with two justices of the peace of Liberty county, against the Savannah, Florida & Western Railway Company, to abate an alleged nuisance. The petition alleged, in substance, that Gill had at the time, and had had for several years previous thereto, a store, in which he conducted a general merchandise business, within 50 yards of the track of the defendant company, about a quarter of a mile east of Walthourville station; that the store was situated immediately upon the public road leading from Hinesville to Johnston's station across the railroad at that point; that the road was not obstructed when he began business in his store; that subsequently the railroad company closed such public road at the point where it crossed its track, and had kept it closed; that the obstruction to such road was an immediate annoyance to the citizens in general, and worked inconvenience and special damage to him, for the reason that his customers could not reach his store without inconvenience, which had decreased his trade. The obstruction complained of consisted of a wire fence built by the railroad company across the road. Upon the hearing before the justices of the peace and 12 freeholders of the county, a verdict was rendered finding that the road obstructed was a public road, and that the obstruction was a public nuisance, which worked special damage and injury to Gill in particular, and that it should be abated; upon which verdict a judgment was rendered by the justices ordering the abatement of the nuisance. The railway company carried the case by certiorari to the superior court, where the certiorari was overruled, and the company excepted.

1. When the case was called for a hearing before the two justices of the peace, the railroad company moved for a continuance upon the ground that it had not been given a reasonable notice as to the nature of the complaint and as to the time and place it would be passed upon, and upon the further ground that the complaint upon which the notice issued, or a copy thereof, had never been served upon it. This motion was overruled, and in the petition for certiorari this ruling was alleged to be erroneous. It will be observed that the motion was not to dismiss the proceeding upon the ground that no legal service had been perfected upon the defendant, or for any other reason, but it was for a continuance, and there was no allegation that the movant, by reason of the alleged insufficiency of the notice, or the failure to serve it with a copy of the complaint upon which the notice was founded, was not then prepared to enter upon the trial of the case, or was less prepared to make its defense to the proceeding than it otherwise would have been. The mere general allegation that the defendant had not been given a reasonable notice of the nature of the complaint and the time and place of the trial, without in any way indicating wherein the notice was defective, was insufficient for any purpose. It is unnecessary to decide whether, in a case like this, the law requires a copy of the complaint lodged with the justices of the peace to be served upon the defendant. Whatever may be the law upon this question, the failure to serve the railroad company with a copy of the complaint was not a good ground for a continuance of the case, unless, by reason of such failure, the defendant was taken by surprise, and less prepared to make its defense than it would have been if it had been served with such copy. By making a motion to continue, instead of a motion to dismiss, the defendant waived any defect, if such there was, in the process by which it was brought before the tribunal which was to try the case. This motion was an implied admission that the justices of the peace had jurisdiction of the defendant in so far as such jurisdiction depended upon the question of the legality of the service. The motion was not an attack upon the jurisdiction, but a plea for time in which to prepare for defense, and was fatally defective in that it did not in any way show that further time was necessary for such purpose. A motion to continue is addressed to the sound discretion of the court, and, for the reasons above indicated, we do not think there was any abuse of discretion in the ruling complained of.

2. One of the questions presented by the certiorari was whether the two justices of the peace, under the provisions of Civ. Code 1895, § 4760, had jurisdiction to abate the particular nuisance complained of upon the complaint filed by Gill. It is contended by the plaintiff in error that the nuisance complained of is not such a public nuisance as can be abated by two justices of the peace, under the provisions of this section of the Civil Code. It is further contended that private citizens cannot abate a public nuisance, but the petition therefor must proceed for the public, on information filed by the solicitor general of the circuit wherein the nuisance is alleged to exist. In support of the first-mentioned of these contentions counsel rely upon the decision in Macon & Brunswick Railroad Co. v. State ex rel. Pate, 50 Ga. 156, and say that under the ruling there made a public nuisance cannot be abated by two justices of the peace, "unless such public nuisance 'is either manifestly injurious to the public health and safety,' or 'tends to greatly corrupt the manners and morals of the people"; and that "in the case at bar neither of these consequences was claimed, nor even suggested." The decision relied upon would, if followed sustain the contention of counsel. That decision is, however, now under review, and we are not obliged to follow it as a binding precedent. It must stand or fall according to its intrinsic merits alone. It was there held that a public bridge across a navigable river, a public highway, could not be abated, under what is now section 4760 of the Civil Code of 1895, by two justices of the peace and twelve freeholders, because the same was not such a nuisance as is contemplated by that section, in that it did not tend to the immediate annoyance of the citizens in general, either by being manifestly injurious to the public health and safety or by tending to corrupt the manners and morals of the people, but was simply an alleged obstruction of a navigable river by the erection and maintenance of a railroad bridge by a chartered corporation of the state. In making such ruling we are of opinion that the court misinterpreted the statute. The words of the statute are: "Any nuisance which tends to the immediate annoyance of the citizens in general, is manifestly injurious to the public health and safety, or tends greatly to corrupt the manners and morals of the people, may be abated," etc. The evident meaning of the statute is to provide for the abatement of three classes of public nuisances, viz.: (1) Those which tend to the immediate annoyance of the citizens in general; (2) those which are manifestly injurious to the public health and safety; (3) those which tend greatly to corrupt the manners and morals of the people. The first clause of this section cannot be arbitrarily ignored. Either it defines a particular class of public nuisances, or it is a part of the description of each of the two classes of public nuisances to which the court in the case under review confined the statute. The court in that case construed the statute as if it had read: "Any nuisance which tends to the immediate annoyance of the citizens in general, and is...