2020 Georgia Code
Title 41 - Nuisances
Chapter 1 - General Provisions
§ 41-1-2. Classes of Nuisances; Public and Private Nuisances Defined

Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals.

(Orig. Code 1863, § 2939; Code 1868, § 2946; Code 1873, § 2997; Code 1882, § 2997; Civil Code 1895, § 3858; Civil Code 1910, § 4454; Code 1933, § 72-102.)

- When infraction of public duty gives cause of action to individual, § 51-1-7.

- For article discussing federal liability for pollution abatement in condemnation actions, see 17 Mercer L. Rev. 364 (1966). For article discussing Georgia's practice of exposing municipalities to tort liability through the use of nuisance law, see 12 Ga. St. B.J. 11 (1975). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005) and 58 Mercer L. Rev. 267 (2006). For note, "Town of Fort Oglethorpe v. Phillips: A Clarification of Georgia's Public Nuisance Law?," see 5 Ga. St. B.J. 474 (1969). For note discussing the abatement of nonconforming uses as nuisances, see 10 Ga. St. B.J. 302 (1973).

ANALYSIS

• General Consideration
• Private Nuisance
• Public Nuisance

General Consideration

Notice before suit not required.

- Action may be maintained for damages resulting from a nuisance, without notice or request to abate the nuisance. Exley v. Southern Cotton Oil Co., 151 F. 101 (S.D. Ga. 1907).

Cited in Justices of Inferior Court v. Griffin & W. Point Plank Rd. Co., 15 Ga. 39 (1854); Ison v. Manley, 76 Ga. 804 (1886); Kavanagh v. Mobile & G.R.R., 78 Ga. 271, 2 S.E. 636 (1887); Cannon v. Merry, 116 Ga. 291, 42 S.E. 274 (1902); Lofton v. Collins, 117 Ga. 434, 43 S.E. 708 (1903); Savannah, F. & W. Ry. v. Gill, 118 Ga. 737, 45 S.E. 623 (1903); Edison v. Ramsey, 146 Ga. 767, 92 S.E. 513 (1917); Holman v. Athens Empire Laundry Co., 149 Ga. 345, 100 S.E. 207, 6 A.L.R. 1564 (1919); Dean v. State, 151 Ga. 371, 106 S.E. 792, 40 A.L.R. 1132 (1921); Town of Rentz v. Roach, 154 Ga. 491, 115 S.E. 94 (1922); Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934); Warren Co. v. Dickson, 185 Ga. 481, 195 S.E. 568 (1938); Harbuck v. Richland Box Co., 204 Ga. 352, 49 S.E.2d 883 (1948); Isley v. Little, 219 Ga. 23, 131 S.E.2d 623 (1963); Burgess v. Johnson, 223 Ga. 427, 156 S.E.2d 78 (1967); Miree v. United States, 526 F.2d 679 (5th Cir. 1976); Abee v. Stone Mt. Mem. Ass'n, 169 Ga. App. 167, 312 S.E.2d 142 (1983); Jones v. State, 265 Ga. 84, 453 S.E.2d 716 (1995); Moreland v. Cheney, 267 Ga. 469, 479 S.E.2d 745 (1997); Thompson v. City of Fitzgerald, 248 Ga. App. 725, 548 S.E.2d 368 (2001).

Private Nuisance

Definition.

- "Private nuisance" is one limited in its injurious effect to one or a few individuals, which may injure either the person or property or both, and in either case a right of action accrues. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313 (1957).

Mere violation of an ordinance does not create a private nuisance. Jillson v. Barton, 139 Ga. App. 767, 229 S.E.2d 476 (1975).

- Creation of a private nuisance is actionable, without regard to the question of negligence. Bonner v. Welborn, 7 Ga. 296 (1849); Exley v. Southern Cotton Oil Co., 151 F. 101 (S.D. Ga. 1907).

Public Nuisance

Extensive injuries not required.

- Language in this section is not used in the sense that every person in the area must have been actually hurt or injured in order to show a public nuisance. Atlanta Processing Co. v. Brown, 227 Ga. 203, 179 S.E.2d 752 (1971).

- Trial court correctly entered summary judgment against the mothers on their public nuisance count because the evidence did not show that all members of the public who came into contact with the river were injured and, thus, the mother's public nuisance cause of action was effectively erased. During the decades prior to the deaths, no other person had ever drowned when entering the river via the boat ramp, whether during power generation or otherwise, and the other six boys who accompanied the decedents into the water on the ramp that day were uninjured. White v. Ga. Power Co., 265 Ga. App. 664, 595 S.E.2d 353 (2004).

Because there was no evidence that a sewer line backup injured more than a few individuals who came into contact with it, it did not constitute a public nuisance, pursuant to O.C.G.A. § 41-1-2, and the four-year limitations period of O.C.G.A. § 9-3-30 applied to the nuisance claim brought by the property owners against a city. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495 (2005).

- Maintenance of a gaming house or a gaming place is a public nuisance. Gullatt v. State ex rel. Collins, 169 Ga. 538, 150 S.E. 825 (1929); Albany Theater, Inc. v. Short, 171 Ga. 57, 154 S.E. 895 (1930).

- Any permanent structure in a street which materially interferes with travel thereon is a public nuisance. City of East Point v. Henry Chanin Corp., 210 Ga. 628, 81 S.E.2d 812 (1954).

- Plaintiff's disposal of the plaintiff's chemicals at a specified site did not amount to creation of a public nuisance since: (1) any contamination of the property caused by the plaintiff did not affect a common right of all members of the public, such as the right to clean air or clean water, and (2) it was not shown that the rights of more than a few individuals were affected by the contamination. Briggs & Stratton Corp. v. Concrete Sales & Servs., 29 F. Supp. 2d 1372 (M.D. Ga. 1998).

Landing and steps of a church, though allegedly so negligently constructed as to be hazardous to life and limb, do not constitute a public nuisance since there is no right common to all of the public to use the steps and landing of a church of a particular denomination. Cox v. DeJarnette, 104 Ga. App. 664, 123 S.E.2d 16 (1961).

- Maintenance and operation of plate glass doors in public civic center was not public nuisance. Zellers v. Theater of Stars, Inc., 171 Ga. App. 406, 319 S.E.2d 553 (1984).

Barricades on a county road marking the approaches to the former site of a timber bridge spanning a railroad track did not constitute a public nuisance. Kitchen v. CSX Transp., Inc., 265 Ga. 206, 453 S.E.2d 712 (1995).

- In view of evidence that a property owner's private road impeded the necessary passage of a city's emergency personnel so as to significantly endanger the health and safety of those persons residing at apartment complexes adjacent to the road, the owner was improperly granted summary judgment in the city's suit seeking abatement of a public nuisance under O.C.G.A. § 41-1-2. City of College Park v. 2600 Camp Creek, LLC, 293 Ga. App. 207, 666 S.E.2d 607 (2008).

- Constant and repeated violations of former statutes relating to the business of buying wages or salaries, and to the small-loan business, with threats to continue the businesses, do not amount to such a public nuisance as may be abated and prevented by a suit in the name of the state. State ex rel. Boykin v. Ball Inv. Co., 191 Ga. 382, 12 S.E.2d 574 (1940).

- Public nuisance is the subject of indictment; not of action. South Carolina R.R. v. Moore & Philpot, 28 Ga. 398, 73 Am. Dec. 778 (1859).

OPINIONS OF THE ATTORNEY GENERAL

Obstruction of crossing on public highway by railroad.

- Public nuisance possibly occurs if a railroad blocks a crossing on a public highway for an unreasonable period of time; for such an action to lie against a railroad, it must be shown that the particular act is an interference or annoyance to the public in the common use of public highways. 1970 Op. Att'y Gen. No. 70-58.

RESEARCH REFERENCES

Am. Jur. 2d.

- 58 Am. Jur. 2d, Nuisances, §§ 33-39.

- 66 C.J.S., Nuisances, §§ 1, 7, 8, 9.

- Trolley poles in street as nuisance, 2 A.L.R. 496.

Noise from operation of industrial plant as nuisance, 23 A.L.R. 1407; 90 A.L.R. 1207.

Nuisance by encroachment of walls or other parts of building on another's land as permanent or continuing, 29 A.L.R. 839.

Amusement park as nuisance, 33 A.L.R. 725.

Gas, water, or electric light plant as a nuisance, and the remedy therefor, 37 A.L.R. 800.

Pesthouse or contagious disease hospital as nuisance, 48 A.L.R. 518.

Aeroplanes and aeronautics, 99 A.L.R. 173.

Legal aspects of radio communication and broadcasting, 124 A.L.R. 982; 171 A.L.R. 765.

Nuisance within contemplation of statute imposing upon municipality duty to keep streets and other public places free of "nuisance," as absolute nuisance or as qualified nuisance, dependent upon negligence, 155 A.L.R. 60.

Racing, or betting on races, as nuisance, 166 A.L.R. 1264.

Animal rendering or bone-boiling plant or business as nuisance, 17 A.L.R.2d 1269.

Liability for injury to property occasioned by oil, water, or the like flowing from well, 19 A.L.R.2d 1025.

Landowner's or occupant's liability in damages for escape, without negligence, of harmful gases or fumes from premises, 54 A.L.R.2d 764; 2 A.L.R.4th 1054.

Automobile sales lot or used car lot as nuisance, 56 A.L.R.2d 776.

Saloons or taverns as nuisance, 5 A.L.R.3d 989.

Keeping of dogs as enjoinable nuisance, 11 A.L.R.3d 1399.

Children's playground as nuisance, 32 A.L.R.3d 1127.

Public swimming pool as nuisance, 49 A.L.R.3d 652.

Exhibition of obscene motion pictures as nuisance, 50 A.L.R.3d 969.

Unsolicited mailing, distribution, house call, or telephone call as invasion of privacy, 56 A.L.R.3d 457.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency, 60 A.L.R.3d 665.

Recovery in trespass for injury to land caused by airborne pollutants, 2 A.L.R.4th 1054.

Carwash as nuisance, 4 A.L.R.4th 1308.

Funeral home as private nuisance, 8 A.L.R.4th 324.

Tower or antenna as constituting nuisance, 88 A.L.R.5th 641.

Keeping of domestic animal as constituting public or private nuisance, 90 A.L.R.5th 619.

Sewage treatment plant as constituting nuisance, 92 A.L.R.5th 517.

Nudity as constituting nuisance, 92 A.L.R.5th 593.

Remedies for sewage treatment plant alleged or deemed to be nuisance, 101 A.L.R.5th 287.