Vaughn v. Burnette

• Decision Date: 09 November 1954
• Docket Number: No. 18773,18773
• Parties: , 45 A.L.R.2d 1281 Maude VAUGHN v. R. A. BURNETTE et al.
• Court: Georgia Supreme Court

Page 568

84 S.E.2d 568

211 Ga. 206, 45 A.L.R.2d 1281

Maude VAUGHN v. R. A. BURNETTE et al.

No. 18773.

Supreme Court of Georgia.

Nov. 9, 1954.

Syllabus by the Court.

An action at law may not be maintained jointly against two separate tortfeasors between whom there is no concert of action as to independent acts of each constituting a nuisance which interferes with the landowner's use and enjoyment of his property; but in equity, where injunction is sought, such an action may be maintained, and damages may be apportioned among the defendants.

Mrs. Maude Vaughn filed an equitable petition in the Superior Court of Whitfield County against the City of Dalton, R. A. Burnette, and Alfred W. Jones, alleging that she has no adequate remedy at law, and seeking injunction and damages against the defendants as the result of an alleged continuing nuisance brought about by the ponding of waters on her lot and damage to real and personal property resulting therefrom. Burnette and Jones filed numerous demurrers attacking the petition on the ground of multifariousness because of misjoinder of parties defendant. The trial court sustained these demurrers and dismissed the petition as to Burnette and Jones, and the exception is to this judgment.

M. C. Tarver, Dalton, for plaintiff in error.

No appearance for defendants in error.

MOBLEY, Justice.

It appears to be a general rule that 'where two or more persons, each acting independently, create or maintain a situation which is a tortious invasion of a landowner's interest in the use and enjoyment of land by interfering with his quiet, light, air, or flowing water, each is liable only for such proportion of the harm caused to the land or the loss of enjoyment of it by the owner as his contribution to the harm bears to the total harm,' as a result of which the defendants cannot be joined as joint tortfeasors in an action for damages. Restatement of the Law, Torts, § 881; Key v. Armour Fertilizer Works, 18 Ga.App. 472, 89 S.E. 593; Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265, 9 A.L.R. 939; Mitchell Realty Co. v. City of West Allis, 184 Wis. 352, 199 N.W. 390, 35 A.L.R. 409; Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292, 91 A.L.R. 759. See, in this connection, Howe v. Bradstreet Co., 135 Ga. 564, 69 S.E. 1082. It also appears to be the law, however, that in a court of equity a suit for injunction may be maintained against persons whose independent acts combine to cause a nuisance and an invasion of the plaintiff's right of enjoyment of land interfering with his quiet, light, air, or flowing water. Restatement of the Law, Torts, § 882(b); 39 Am.Jur. pp. 437-438, § 167; City of Atlanta v. Cherry, 84 Ga.App. 728, 733, 67 S.E.2d 317; Johnson v. City of Fairmont, 188 Minn. 451, 247 N.W. 572; Sun Oil Co. v. Robicheaux, Tex.Com.App., 23 S.W.2d 713....