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Butler vs. The Mayor, etc., of Thomasville et al.

tension to the river, which was impracticable because of its enormous cost; that it was not supposed that complainant would ask or receive compensation for an entry on his land to lay the sewer until the filing of his bill, and then a councilman was appointed to ascertain what, if anything, should be paid him, but he refused to negotiate. The answer further denied any violation of the restraining order, and averred that the laying of the sewer on complainant's land was completed before service of the order, and that the hotel sewer was laid before the amended bill was filed; and that respondents have no power to prevent any citizen from availing himself of the great benefits afforded by connection with this main sewer.

Various affidavits were read, on the hearing, in support of the bill, amended bill and answer, but they are not material here.

The injunction was refused, and complainant excepted and made the following assignments of error:

(1.) The chancellor erred in deciding that casting the sewage from a hotel on the land of complainant would not be a nuisance.

(2.) In deciding that the emptying of the sewer into the water of the branch on the land and running through the land of complainant would not be a nuisance.

(3.) In deciding that the use of the sewer and the daily throwing of the sewage upon the land of complainant would not be a continuing and constantly recurring nuis

ance.

(4.) In holding that the defendants had a legal right to establish a nuisance upon the land of complainant

(5.) In holding that the defendants could enter upon the land of complainant and take it for public use, without just and adequate compensation being first paid, over objection of complainant.

(6.) In holding that, after the construction of the sewer upon the land and emptying it thereupon, the use of the

Butler vs. The Mayor, etc., of Thomasville et al.

sewer daily would not be a continuous and constantly recurring trespass.

(7.) In deciding that the injury or damage done by con. structing the sewer and the daily and continuous use of it and casting the sewage upon the land and in the branch would not be irreparable.

(8.) In holding that the avoidance of circuity and multiplicity of actions would not authorize a court of equity to enjoin a trespass

(9.) The judgment was contrary to law, equity, evidence and the constitutions of Georgia and the United States.

MACINTYRE & MACINTYRE, by HARRISON & PEEPLES, fo plaintiff in error.

W. M. HAMMOND; CHAS. P. HANSELL, by brief, for defendants.

BLANDFORD, Justice.

1. We think the allegations in the bill and the admissions in the answer make a case of nuisance. The discharge of filthy sewage upon the land of another, which may probably cause injury to the health and sickness in the family of such person, and where the nuisance is continuing and likely to be permanent, and where the consequences are not barely possible, but to a reasonable degree certain, a court of equity may interpose to arrest such nuisance before completed. Code, §3002. Again, we have held that if a nuisance causes special damage to an individual, in which the public do not participate, such special damage gives a right of action, and as an action may be brought for every day the nuisance continues, equity, which abhors a multiplicity of suits, will entertain jurisdiction so as to do full and complete justice between the parties and terminate the litigation. Georgia Chemical and Mining Company vs. Colquitt et al., 72 Ga.. 172; 18 Ga., 528. More

Butler vs. The Mayor, etc., of Thomasville.

especially will this be done when the party which seeks to create the nuisance is the only tribunal which has the power to abate the nuisance, as in this case. The nuisance is in the city of Thomasville, and it is this city, by its proper authorities, which has the power under the law to abate this nuisance, and yet it is the power which is perpetrat ing it. This case differs in this particular from Powell vs. Foster, 59 Ga., 790. Here it is the municipal authorities which seek to create the nuisance. No one can be a judge in his own case. The damages likely to result to the plaintiff in error by reason of the nuisance are irreparable. See Wood's Law of Nuisances, sections 502, 512, 301, 684, 685, 686; Code, §§3000, 3210, 3219, and citations, which fully sustain the text.

2. There is no power or authority vested in the city of Thomasville authorizing it to enter upon or take the land of plaintiff for the purpose of digging or laying a sewer thereon, by its charter or other acts of the legislature. Acts of 1874, page 167. Nor is there any mode prescribed for the condemnation of such property for public use. Without express grant of such power, a municipal corporation cannot exercise it. Private property cannot be taken or damaged for public use without just and adequate compensation being first paid. Constitution of this state; Code, §§5024, 2225. The legislature may authorize the taking of private property, as provided by section 2222. If such authority be improperly granted, the courts shall declare it inoperative. Code, §2223. To justify the authority claimed by the city in this case, two things must concur: 1st. The necessity for the taking. 2d. Payment of just and adequate compensation before taking. The constitution and laws of this state guard with vigilance and jealousy the private rights and property of the citizen, and the courts of the state have ever extended their aid and assistance in the same direction, as will be seen by an examination of the following authorities: 1 Kelly, 524; 3

74 576

107 507

The Planters and Miners' Bank vs. Neel, receiver.

Id., 31, 333; 6 Ga., 130; 9 Id., 37, 341; 14 Id., 1; 19 Id., 427; 37 Id., 297; 33 Id., 508; 42 Id., 501; 33 Id., 625.

However much we are disinclined to interfere with the discretion of a chancellor in granting or refusing to grant an injunction, we feel constrained, under the facts set forth in this record, to reverse the decree refusing the injunction prayed for in this case, and to order an injunction to issue. Judgment reversed.

THE PLANTERS AND MINERS' BANK vs. NEEL, receiver.

1. The issue being whether a bank was indebted to the estate of a decedent, admissions made by the administrator of the estate, while occupying that position, that the bank owed the estate nothing, were admissible, he having brought the suit, although at the time of the trial a receiver had been appointed to take charge of the estate.

2. Generally the cashier of a bank, who made a trade involved in the issue on the trial of a case, is not a competent witness, where the other party to the contract is dead, the bank having acted, spoken and dealt through such cashier. But if the receiver of the decedent's estate introduces to the jury the sayings or writings of the cashier, the latter may explain such statements or admissions, and give all that transpired at the time concerning that transaction; especially if he was agent both for the bank and for the other contracting party.

3. Where an instrument was set out in a declaration as an inducement or foundation of the suit, as stating, "I have renewed your draft," etc., and the paper offered in evidence under the declaration stated that "I have received your draft," etc., and the dates of the two instruments were different, the evidence was inadmissible. If the instrument was a paper sued on, the error was fatal; if not, its execution should have been proved.

4. The character of the deceased contracting party as a man of close attention to business, was admissible as throwing light on the transaction, under all the circumstances of this case.

(a.) The tendency of the courts is to open the doors wider to let in testimony.

March 10, 1885.

Administrators and Executors. Evidence.

Corporations. Witness. Before Judge FAIN.
Superior Court. July Term, 1884.

Banks.

Bartow

The Planters' and Miners' Bank vs. Neel, receiver

To the report contained in the decision, it is only nec essary to add the grounds of the motion for new trial, which were as follows:

(1.) Because the court refused to permit the defendant to prove that, while Gray was Tumlin's administrator, he admitted that the defendant owed nothing to the estate on the subject matter of this suit, defendant also offering to prove the naked fact of such admission. [The court added to this ground the following note: "Gray stated that, upon or after investigation, his mind came to a conclusion as to the validity of this debt. Plaintiff's counsel objected to his stating what conclusion his mind came to, and the court held that he could not give his conclusion or opinion, but that he could state any facts from which he formed his opinion, and excluded no admission independently."]

(2.) Because the court refused to permit a witness to testify that, as cashier of defendant, the witness (Peacock) and Tumlin made a trade by which the draft mentioned in the receipt of the cashier, attached to the declaration as an exhibit, was purchased from Tumlin by the defendant and paid for, Tumlin's death, and the witness's acting for the bank in the trade being proved, and it being also proved that the witness had no stock in the bank, and was not interested in it in any way at the time of the trial, nor did he ever have any interest in the result of this suit; that this trade occurred in 1873, after the date of his letter to Tumlin set out in the declaration; that the bank suspended in 1876, and had done no business since; that Peacock was, when the trade was made, and has been continuously from the organization of the bank until Tumlin's death, the latter's confidential agent and adviser and the custodian of his choses in action, and in this trade made the figures for Tumlin; and Tumlin acted on his advice, and with his assistance, in making this trade, the bank's officers, when Peacock was employed by it, and ever since, knowing of his agency for Tumlin. Defendant offered also to prove by said Peacock that the terms of this trade were, that the v 74-37

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