2021 Georgia Code
Title 41 - Nuisances
Chapter 1 - General Provisions
§ 41-1-3. Right of Action for Public Nuisance Generally

A public nuisance generally gives no right of action to any individual. However, if a public nuisance in which the public does not participate causes special damage to an individual, such special damage shall give a right of action.

(Orig. Code 1863, §§ 2939, 2940; Code 1868, §§ 2946, 2947; Code 1873, §§ 2997, 2998; Code 1882, §§ 2997, 2998; Civil Code 1895, §§ 3858, 3859; Civil Code 1910, §§ 4454, 4455; Code 1933, § 72-103.)

- Penalty for maintaining house in which gaming, drinking, or other misbehavior occurs, or which presents common disturbance to neighborhood, § 16-11-44.

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

- 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 article surveying Georgia cases dealing with environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978). 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).

JUDICIAL DECISIONS

Right of action grows out of special injury.

- Even though a given condition may constitute a public nuisance, a citizen suffering special damage by reason of sickness of the person or family, or depreciation of the person's property, as the result thereof, has a cause of action against the party creating or maintaining the nuisance. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).

Even though a given condition may constitute a public nuisance, a citizen suffering special damage has a cause of action against the person creating or maintaining the condition. City of Blue Ridge v. Kiker, 189 Ga. 717, 7 S.E.2d 237 (1940).

- Even though it appeared that a homeowner's operation of an elevator in violation of departmental rules and regulations gave rise to a public nuisance under O.C.G.A. § 8-2-107(a), because the plaintiffs did not inform the defendant that the plaintiffs were relying on a nuisance theory until the plaintiffs moved for a directed verdict at the close of the evidence, the court did not err in denying the plaintiff's motion for directed verdict on a ground not timely asserted. Childers v. Monson, 241 Ga. App. 70, 524 S.E.2d 326 (1999).

All injury to health is special, and necessarily limited in its effect to the individual affected, and is, in its nature, irreparable. It matters not that others within the sphere of the operation of the nuisance, whether public or private, may be affected likewise. De Vaughn v. Minor, 77 Ga. 809, 1 S.E. 433 (1887); Hunnicutt v. Eaton, 184 Ga. 485, 191 S.E. 919 (1937).

- In order for an individual to abate a public nuisance it is necessary that the individual show special damages. Moon v. Clark, 192 Ga. 47, 14 S.E.2d 481 (1941).

- Landowner may maintain a suit in equity to enjoin further interference with the landowner's means of egress to and ingress from the public highway, when such interference amounts to a continuing nuisance or trespass, and when an injunction would prevent a multiplicity of suits. Barham v. Grant, 185 Ga. 601, 196 S.E. 43 (1937).

Damages for one whose means of egress from and ingress to one's property abutting on a public highway is illegally and unnecessarily interfered with may be the depreciation in market value, if the obstruction is a permanent one, or the damage to business and loss of profits. Punitive damages may be recovered if the circumstances are such as to justify the allowance thereof. Holland v. Shackleford, 220 Ga. 104, 137 S.E.2d 298 (1964).

- Allegations of petition seeking to enjoin an alleged nuisance in operating an asphalt and cement-mixing and manufacturing plant as to the spilling of concrete and asphalt in a public street and its effect on persons walking along the street related to a public nuisance, and stating no special damage, showed no cause of action. Asphalt Prods. Co. v. Beard, 189 Ga. 610, 7 S.E.2d 172 (1940).

Allegations of petition in which petitioners sought equitable relief "as individuals, citizens, and taxpayers" from the closing of a railroad crossing were insufficient to show special damage to petitioners, or any damage not shared equally by all other "individuals, citizens, and taxpayers," and the petition was therefore insufficient for the grant of any relief to the petitioners as individuals, citizens, and taxpayers. State Hwy. Dep't v. Reed, 211 Ga. 197, 84 S.E.2d 561 (1954).

- Right of a company to build a dam does not include a right to build or maintain the dam in such a negligent or improper manner as to cause a nuisance injurious to the health of the adjacent community. For damages arising from such things an action will lie. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).

- In this state damages recoverable on account of a nuisance are not limited to injury to realty, but injury to health may furnish a basis for such recovery. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).

Municipality need not be joined as a party to an action to abate a nuisance which specially injured the plaintiff. Trust Co. v. Ray, 125 Ga. 485, 54 S.E. 145 (1906).

- To maintain an action for an injury received from an obstruction in a highway, two things must concur: an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid the obstruction on the part of the plaintiff. Branan v. May, 17 Ga. 136 (1855).

If the owner of adjoining property suffers special damage from the unlawful running of cars in a public street, this entitled the owner to maintain an action. Kavanagh v. Mobile & G.R.R., 78 Ga. 271, 2 S.E. 636 (1887).

If sickness results from the stagnation of a pool of water a cause of action exists. Savannah, F. & W. Ry. v. Parish, 117 Ga. 893, 45 S.E. 280 (1903).

Right of a municipality to grant a person the power to obstruct a street is dependent on legislative authority, hence, the unauthorized obstruction of a street furnishing an avenue of approach to one's place of business is actionable. Coker v. Atlanta, K. & N. Ry., 123 Ga. 483, 51 S.E. 481 (1905); Hendricks v. Jackson, 143 Ga. 106, 84 S.E. 440 (1915).

Cited in Vason v. South Carolina R.R., 42 Ga. 631 (1871); Austin v. Augusta Term. Ry., 108 Ga. 671, 34 S.E. 852 (1899); Sammons v. Sturgis, 145 Ga. 663, 89 S.E. 774 (1916); Holman v. Athens Empire Laundry Co., 149 Ga. 345, 100 S.E. 207 (1919); Knox v. Reese, 149 Ga. 379, 100 S.E. 371 (1919); Warren Co. v. Dickson, 185 Ga. 481, 195 S.E. 568 (1938); Poole v. Arnold, 187 Ga. 734, 2 S.E.2d 83 (1939); Floyd v. City of Albany, 105 Ga. App. 31, 123 S.E.2d 446 (1961); Save The Bay Comm., Inc. v. Mayor of Savannah, 227 Ga. 436, 181 S.E.2d 351 (1971); Brock v. Hall County, 239 Ga. 160, 236 S.E.2d 90 (1977); Stephens v. Tate, 147 Ga. App. 366, 249 S.E.2d 92 (1978); Brand v. Wilson, 252 Ga. 416, 314 S.E.2d 192 (1984); Rea v. Bunce, 179 Ga. App. 628, 347 S.E.2d 676 (1986).

RESEARCH REFERENCES

Am. Jur. 2d.

- 58 Am. Jur. 2d, Nuisances, §§ 212-217.

- 66 C.J.S., Nuisances, §§ 109-111.

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

Right to enjoin threatened or anticipated nuisance, 32 A.L.R. 724; 55 A.L.R. 880.

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

Automobile gas filling or supply station as a nuisance, 124 A.L.R. 383.

Liability of private persons or corporations draining into sewer maintained by municipality or other public body for damage to riparian owners or others, 170 A.L.R. 1192.

Attracting people in such numbers as to obstruct access to the neighboring premises, as nuisance, 2 A.L.R.2d 437.

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

Sewage disposal plant as nuisance, 40 A.L.R.2d 1177.

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

Liability of abutting owner or occupant for condition of sidewalk, 88 A.L.R.2d 331.

Statutes, ordinances, or regulations relating to private residential swimming pools, 92 A.L.R.2d 1283.

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

Water distributor's liability for injuries due to condition of service lines, meters, and the like, which serve individual consumer, 20 A.L.R.3d 1363.

Liability for injury or damage caused by rocket testing or firing, 29 A.L.R.3d 556.

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

Liability in connection with fire or explosion of explosives while being stored or transported, 35 A.L.R.3d 1177.

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

Airport operations or flight of aircraft as nuisance, 79 A.L.R.3d 253.

Existence of, and relief from, nuisance created by operation of air conditioning or ventilating equipment, 79 A.L.R.3d 320.

Liability of swimming facility operator for injury to or death of diver allegedly resulting from hazardous condition in water, 85 A.L.R.3d 750.

Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542.

Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.

What constitutes special injury that entitles private party to maintain action based on public nuisance - modern cases, 71 A.L.R.4th 13.

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