OTT
v.
RABURN

Supreme Court of GeorgiaJul 28, 1948
204 Ga. 198 (Ga. 1948)
204 Ga. 19848 S.E.2d 871

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16275.

JULY 15, 1948. REHEARING DENIED JULY 28, 1948.

Petition for injunction. Before Judge Crow. Mitchell Superior Court. April 24, 1948.

Bell, Justice, being absent because of illness, Judge A. M. Anderson was designated for this case.

Frank S. Twitty, for plaintiffs.

Edward T. Hughes, for defendants.


1. "Mere apprehension of irreparable injury from an alleged nuisance consisting of a house in course of construction for a lawful business use is not sufficient to authorize an injunction. If it be a nuisance, the consequences must be to a reasonable degree certain." Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472 ( 67 S.E. 1126); Thomoson v. Sammon, 174 Ga. 751, 757 ( 164 S.E. 45); Wingate v. Doerun, 177 Ga. 374 ( 170 S.E. 226).

2. Where, as here, the bill of exceptions recites that counsel for the plaintiffs in error stated in open court that the plaintiffs did not contend that the construction of the new church building would constitute a nuisance per se, and the evidence (if any) that the new church building would become a nuisance per accidens was based on a mere apprehension of injury, it was not error for the trial court to deny the grant of an interlocutory injunction.

Judgment affirmed. Jenkins, Chief Justice, Duckworth, Presiding Justice, Atkinson, Wyatt, and Candler, Justices, and Judge A. M. Anderson concur.

ON MOTION FOR REHEARING.

The plaintiffs in error contend that this court overlooked the evidence that a temporary building permit was granted the defendants, but that this permit was expressly revoked by the building committee; and that the building ordinance of the City of Pelham of January 15, 1930, was not considered by the court. A casual examination of the statement of facts will reveal that such contentions are without merit. While it is contended by the plaintiffs in error that the building permit granted was "temporary" and later "revoked," the trial court was amply authorized to find against such contentions. The copy of the building permit appearing in the record does not purport by its terms to be "temporary," nor is any authority cited granting the right to the City of Pelham to grant a "temporary" building permit which may later be revoked at the pleasure of the granting authority. The plaintiffs in error did not introduce any evidence to show a violation by the defendants of the ordinance of January 15, 1930. W. H. Simpson, one of the defendants, testified that the construction of the building was not begun until a formal building permit was granted by the City of Pelham, and that the witness furnished all information requested by the Clerk of the City of Pelham at the time the building permit was granted. The testimony of Simpson alone (had there been any evidence for the plaintiffs that the ordinance of January 15, 1930, was not complied with) supports the findings of the trial judge in favor of the defendants. The rule that this court will not control the discretion of the trial court, unless abused, on conflicting evidence, in the grant or refusal of an interlocutory injunction, has been stated so many times as not to require citations here.

It is contended that the court overlooked and "ignored" the case of Wofford Oil Co. v. David, 181 Ga. 639 ( 183 S.E. 808), which is "controlling in the case at bar." An examination of the facts in the Wofford case shows that there no application for a building permit was ever made, and the Wofford case is not authority in the present case, where the building permit was admittedly applied for, granted, and the only contention is that it was "temporary" and later "revoked." Every material contention made by the plaintiffs in error is not without conflict in the evidence, and the motion for rehearing is therefore denied.

No. 16275. JULY 15, 1948. REHEARING DENIED JULY 28, 1948.


HEAD, Justice.

On February 11, 1948, J. E. Ott, and others, as citizens and residents of the City of Pelham, filed their petition against that church organization known as the Assembly of God, V. L. Raburn, and W. H. Simpson, as Trustees of the Assembly of God, and Carl Smith. They alleged: The trustees purchased a described lot in the City of Pelham. They have employed Carl Smith for the purpose of constructing a church edifice on the described lot, and are now in the process of attempting to construct such building. According to the ordinances of the City of Pelham, it is a prerequisite that those who desire to construct a building in the city shall obtain a proper building permit to be approved by the mayor and aldermen of the city. The defendants applied to the building committee for a building permit, which was tentatively approved by the committee, provided that there was no objection by any interested citizen, and provided further that the permit would be finally approved by the mayor and aldermen. Almost immediately after the tentative approval was given, and before the mayor and aldermen had an opportunity to act on the application, many objections by the plaintiffs and other citizens were made to the committee against the granting of the permit, and the committee revoked the permit, before any action was started by the defendants, and the committee members notified the trustees by letter that the application for the building permit had been formally rejected by the committee. The defendants were then personally notified by the building committee that they could appeal to the Mayor and Aldermen of the City of Pelham. The defendants are now starting the construction of a church building which will prove detrimental to the plaintiffs and other property owners and will cause the plaintiffs and others similarly situated irreparable harm and damage and depreciation of their property values. The section where the church building is to be erected is exclusively residential, and to allow the church building to be erected would mean the congestion of streets, loud noises and singing at all times of the day and night, and in general a nuisance to those who desire the peace and quiet of home. The plaintiffs have appealed to the mayor and city council to stop the defendants from erecting the church building because the defendants do not have a proper building permit and because it will create a nuisance, but the plaintiffs have been informed by the mayor and council that they do not have any recourse other than to deny the granting of the permit. The plaintiffs have no adequate remedy at law. The prayers were for process, that the defendants and their successors in office, and members of the Assembly of God Church, be temporarily and permanently enjoined from erecting the church building without a proper and legal building permit, and for other relief. A temporary restraining order was issued.

The petition was amended by setting out a fire ordinance of the City of Pelham, and it was alleged that the defendants had not filed a plan of the proposed church and a statement of the material to be used, in compliance with the ordinance. They further alleged that on February 20, 1948, the Mayor and Council of the City of Pelham adopted a zoning ordinance restricting a certain section of the city (including that section on which the church building was to be erected) to a residential section; and on the same date the mayor and council passed a resolution revoking the building permit signed by Councilmen Payne and Paullin. It was alleged that each of the ordinances referred to in the amendment is valid and binding upon the defendants because they did not have a valid and legal building permit at the time they purchased the lot on January 7, 1948, or at the time the construction of the building was started on about February 15, 1948.

V. L. Raburn, as pastor of the Assembly of God Church in Pelham, in his answer denied that the building permit issued for the building of the church was tentatively or conditionally granted, and denied that the church will prove detrimental to the plaintiffs or others, or will damage and depreciate the property of anyone. W. H. Simpson in his answer denied that the building committee notified him that they should desist from erecting the church, and he denied the allegations of injury. Carl Smith in his answer contended that there had been a misjoinder of parties defendant in the action, since he had no interest in the subject-matter, but was merely employed as a workman in assisting in the building of the church. The defendants amended their answers, in reply to the amended grounds of the plaintiffs' petition, and contended that: The fire ordinance set out in the plaintiffs' amendment affects only a limited area of the City of Pelham, the location of the church which the defendants were in the process of erecting is outside of this area, and the ordinance has no application to the church. The defendants have had a valid building permit since October 31, 1947, and deny that the zoning ordinances passed thereafter by the city affect the issues involved in the suit. The defendants filed general and special demurrers and a plea of estoppel to the petition. The record does not indicate that any ruling was made on the demurrers or the plea of estoppel.

On the hearing of the case the petition, as amended, and the answers of the defendants, as amended, were introduced in evidence, together with other evidence, and the judge passed the following order: "The above and foregoing matter coming on for hearing at this time and after hearing evidence and after consideration thereof, it is by the court ordered and adjudged that the application for injunction be and the same is hereby denied. This April 24, 1948."

The exception here is to the order of the judge denying the injunction.