2020 Georgia Code
Title 41 - Nuisances
Chapter 1 - General Provisions
§ 41-1-5. Right of Action of Alienee of Injured Property for Continuance of Nuisance; Necessity for Request to Abate Nuisance

1. The alienee of a person owning property injured may maintain an action for continuance of the nuisance for which the alienee of the property causing the nuisance is responsible.
2. Prior to commencement of an action by the alienee of the property injured against the alienee of the property causing the nuisance, there must be a request to abate the nuisance.

(Code 1863, § 2943; Code 1868, § 2950; Code 1873, § 3001; Code 1882, § 3001; Civil Code 1895, § 3862; Civil Code 1910, § 4458; Code 1933, § 72-105; Ga. L. 1991, p. 94, § 41.)

- Covenants and warranties relating to land transactions generally, § 44-5-60 et seq.

- For article discussing nuisances as "Hidden Liens," see 14 Ga. St. B.J. 32 (1977). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012).

ANALYSIS

• General Consideration
• Notice of Existence of Nuisance

This section is a codification of the common law. Bonner v. Welborn, 7 Ga. 296 (1849); Roberts v. Georgia Ry. & Power Co., 151 Ga. 241, 106 S.E. 258 (1921).

- This section does not apply when the original injury was caused by the alienee, hence, no notice to abate is necessary. Southern Ry. v. Puckett, 121 Ga. 322, 48 S.E. 968 (1904); Davis v. Beard, 202 Ga. App. 784, 415 S.E.2d 522 (1992).

- There must be a duty to abate a nuisance before liability for the maintenance of a continuing nuisance may attach. Bradford Square Condo. Ass'n v. Miller, 258 Ga. App. 240, 573 S.E.2d 405 (2002).

Lessee of property was liable for damages from continuing contamination the lessee originally caused, and the fact that the lessee had vacated the premises would not remove the lessee's legal duty to abate the nuisance the lessee caused and which continued within four years of plaintiffs' action. Smith v. Branch, 226 Ga. App. 626, 487 S.E.2d 35 (1997).

Cited in Phinizy v. City Council, 47 Ga. 266 (1872); Felker v. Calhoun, 64 Ga. 514 (1880); Williams v. Southern Ry., 140 Ga. 713, 79 S.E. 850 (1913); Smith v. Central of Ga. Ry., 22 Ga. App. 572, 96 S.E. 570 (1918); Poultryland, Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 (1946); Martin v. Medlin, 83 Ga. App. 589, 64 S.E.2d 73 (1951); Shaheen v. G & G Corp., 230 Ga. 646, 198 S.E.2d 853 (1973); Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997); West v. CSX Transp., Inc., 230 Ga. App. 872, 498 S.E.2d 67 (1998); Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009).

Notice of Existence of Nuisance

Notice of existence or request for abatement must be given alienee.

- Notice to an alienee that the alienee will be held responsible for any damages subsequently caused by the nuisance will suffice in lieu of a specific request to abate. Central R.R. v. English, 73 Ga. 366 (1884); Central of Ga. Ry. v. Americus Constr. Co., 133 Ga. 392, 65 S.E. 855 (1909).

It is error to charge that a lessee need not receive notice when the evidence conflicted on the question of whether the lessee had increased the nuisance. Seaboard & R.R.R. v. Ambrose, 122 Ga. 47, 49 S.E. 815 (1905).

Before a cause of action for maintenance of a nuisance arises against alienee of nuisance, there must be a notice of the existence of the nuisance, or a request to abate the nuisance, given to alienee; mere passive knowledge of the existence of the nuisance by alienee is not sufficient. Georgia Power Co. v. Fincher, 46 Ga. App. 524, 168 S.E. 109 (1933).

While an action will lie without notice against one who erects and maintains a nuisance, notice is a prerequisite against one who merely acquires property on which there is an existing nuisance, passively permits the nuisance's continuance, and adds nothing thereto. Georgia Power Co. v. Moore, 47 Ga. App. 411, 170 S.E. 520 (1933).

Maintenance of the nuisance after notice is continuance of the nuisance, and the alienee of the property causing the nuisance is responsible for that continuance, if there is a request for abatement before action is filed. Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 426 S.E.2d 387 (1992).

Trial court correctly determined that a property owner's failure to provide ante litem notice to an apartment owner prohibited the property owner from pursuing nuisance claims because, pursuant to O.C.G.A. § 41-1-5(b), the property owner was required to provide the apartment owner with notice of the nuisance or a request to abate prior to filing suit unless it did anything to increase the nuisance; the apartment owner acquired the property after detention ponds had been built and after storm water runoff from the property had already become problematic on the property owner's land, and the property owner presented no evidence that the apartment altered the property or took any other affirmative action to increase the nuisance. Haarhoff v. Jefferson at Perimeter L.P., 315 Ga. App. 271, 727 S.E.2d 140 (2012).

Damages prior to notice cannot be recovered. City Council v. Marks, 124 Ga. 365, 52 S.E. 539 (1905); Roberts v. Georgia Ry. & Power Co., 151 Ga. 241, 106 S.E. 258 (1921).

- Macko v. City of Lawrenceville, 231 Ga. App. 671, 499 S.E.2d 707 (1998), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146, 661 S.E.2d 195 (2008).

- Grantee or alienee of property causing a nuisance is not liable for damages caused by its continued maintenance and accruing prior to a notice or request to abate; but it is also the rule that when the alienee of property on which is situated a nuisance does anything to increase the nuisance, the alienee may be sued without notice to abate. Savannah Elec. & Power Co. v. Horton, 44 Ga. App. 578, 162 S.E. 299 (1932).

While notice is required to one who merely purchases land and fails to remove a nuisance created by another, yet it is not necessary to an alienee, who knowingly does some additional act to actively maintain and use a nuisance originally created by another, or does something to increase the existing nuisance or its injurious effects, and thus creates in effect a fresh nuisance. Georgia Power Co. v. Moore, 47 Ga. App. 411, 170 S.E. 520 (1933).

- Letters to homeowners were legally insufficient to give the required notice to abate a nuisance caused by the allegedly undersized drainage pipes; letter stated city blamed homeowners for not maintaining pipes and that if further litigation was necessary the homeowners could be named as parties. Macko v. City of Lawrenceville, 231 Ga. App. 671, 499 S.E.2d 707 (1998), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146, 661 S.E.2d 195 (2008).

- When a person rents land which is adjacent to a nuisance, one is under no duty to move away. Central R.R. v. English, 73 Ga. 366 (1884).

- Upon the trial of a suit against alienee of a nuisance to recover damages for maintenance of the nuisance, which arises out of the construction of the dam which alienee's predecessor in title had erected, and which alienee had not altered, it was error for the court to instruct jury that, if the agent of the defendant in charge of the dam as superintendent is the same person who had held the same position with the defendant's predecessor in title, and who, as superintendent for latter, had notice of the existence of the nuisance, knowledge by one of this fact constituted notice to the defendant of the existence of the nuisance. Georgia Power Co. v. Fincher, 46 Ga. App. 524, 168 S.E. 109 (1933).

- Purchaser of property upon which there is an existing nuisance is not barred from the purchaser's right to recover damages resulting from a continuation of the nuisance by the defendant, after requesting the defendant to abate the nuisance, by the fact that the purchaser purchased the property with knowledge of the nuisance. Roughton v. Thiele Kaolin Co., 209 Ga. 577, 74 S.E.2d 844 (1953).

Owner or lessee of land although taking with knowledge of a nuisance, has a right to presume that, being illegal, the nuisance will be abated; and, if it is not, one may sue for damages resulting to the owner or lessee therefrom. Ingram v. City of Acworth, 90 Ga. App. 719, 84 S.E.2d 99 (1954).

Measure of damages. Mayor of Gainesville v. Robertson, 25 Ga. App. 632, 103 S.E. 853 (1920).

Notice to the alienee cannot be set up by an amendment. Blackstock v. Southern Ry., 120 Ga. 414, 47 S.E. 902 (1904).

- Allegations that damage was caused by the erection of a nuisance by the defendant are not supported by evidence that it was erected by the predecessor in title. Southern Ry. v. Cook, 106 Ga. 450, 32 S.E. 585 (1899); DeLoach v. Georgia C. & P.R.R., 137 Ga. 633, 73 S.E. 1072 (1912).

RESEARCH REFERENCES

Am. Jur. 2d.

- 58 Am. Jur. 2d, Nuisances, §§ 101, 103, 216.

- 66 C.J.S., Nuisances, §§ 107, 108, 220 et seq.

- Liability for property damage caused by vibrations, or the like, without blasting or explosion, 79 A.L.R.2d 966.

Landowner's right to relief against pollution of his water supply by industrial or commercial waste, 39 A.L.R.3d 910.

"Coming to nuisance" as a defense or estoppel, 42 A.L.R.3d 344.

Residential swimming pool as nuisance, 49 A.L.R.3d 545.

Computer as nuisance, 45 A.L.R.4th 1212.