Tate v. Mull

Evans, P. J. (After stating the foregoing facts.) The Civil Code, § 4457, defines a nuisance as “anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being á nuisance. The inconvenience complained of must not be fanciful, or such as would affect only one of fastidious taste, but it must be such as would affect an ordinary reasonable man.” The operation of a cotton-gin is not per se a nuisance, but it may become so under certain circumstances. A landowner has no right to conduct a lawful business on his own land in such a way as to invade and injuré his neighbor’s property. The evidence was to the effect that the defendant erected a seed-house near his ginnery and a few yards from the plaintiff’s residence, into which seed-house he forced the seed from the ginnery by air suction, which method caused a great quantity of dust to be forced through the cracks of the seed-house and to settle in the plaintiff’s home and on the floors and the furniture therein, the effect-of which was to depreciate the value of the home by $200. Prom this evidence the jury would be authorized to find that the defendant was maintaining an actionable nuisance. Ponder v. Quitman Ginnery, 122 Ga. 29 (49 S. E. 746). In order to obtain an injunction against the maintenance of a nuisance, it must appear that by reason of its gravity, permanent character, or both, the plaintiff can not be adequately compensated in damages, or that the injury must be continuing so as to cause a constantly recurring grievance. Farley v. Gate City Gas Light Co., 105 Ga. 323, 337 (31 S. E. 193). Although the plaintiff waived her right to damages, if the jury should find from the evidence that the manner in which the gin was operated constituted a nuisance, with resultant injury to the plaintiff’s property, and the nuisance- was a continuing one, the plaintiff would be entitled to an injunction against its continued main [198] tenance. The circumstance that the ginnery was constructed in close proximity to the plaintiffs residence, without objection on her part, does not deprive her of her right to bring an action to enjoin the operation of the ginnery in such a way as to make it a nuisance. ■ The doctrine of estoppel does not apply where a landowner sees his neighbor erect a building to be used in a lawful enterprise, where there is nothing to suggest that the machinery therein employed will be so improperly operated as to injure and damage his property. The plaintiff is not entitled to an injunction against the operation of the ginnery in a proper manner; but if it is made to appear that its operation is in such manner as to amount to a continuing nuisance, she would be entitled to an injunction against the defendant maintaining such nuisance. Faulkenbury v. Wells, 28 Tex. Civ. App. 621 (68 S. W. 327). Judgment reversed. All the Justices concur.