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Jillson v. Barton

Citation: 7 ELR 20074
No. No. 52547, 229 S.E.2d 476/139 Ga. App. 767, (Ga. Ct. App., 10/04/1976)

Affirming the lower court, the Georgia Court of Appeals dismisses plaintiff's action concerning aesthetic injury to property allegedly resulting from construction activities on adjacent property. Plaintiff's original complaint was based on the theory of equitable conversion and alleged indirect injury and damage to the aesthetic value of her land caused by defendants' changing the contour of and construction on the land directly next to plaintiff's property. In her amended complaint, plaintiff alleged a conspiracy to remove a ridge without a permit, contrary to state and county law.

At the outset, the court finds inapplicable plaintiff's reliance on equitable conversion and decides that the cause of action for indirect damages to property must be based upon a nuisance theory. Relying on prior state law, however, the court rules that a cause of action for nuisance does not lie because "unsightliness of adjacent property alone, tending to devalue the adjoining property, is not such inconvenience as to amount to a nuisance for which an injunction will lie." The conspiracy claim is rejected on several grounds. No state law requires such a permit, and mere violation of an ordinance does not create a private nuisance. Furthermore, since the amended complaint relates back to the original complaint, the permit problem is pretermitted because no recoverable damages were alleged. Finally, conspiracy will not lie for damages from an act where there is no cause of action for damage if the act is done by one person alone.

The full text of this opinion is available from ELR (3 pp. $0.50, ELR Order No. C-1096).

Counsel for Plaintiff-Appellant
Stanley H. Nylen
2964 Peachtree Rd.
Atlanta GA 30305
(404) 231-2004

Counsel for Defendant-Appellees
Earle B. May, Jr.
David A. Rammelkamp
Jones, Bird & Howell
4th floor, Haas-Howell Bldg.
Atlanta GA 30303
(404) 522-2508

Deen, P.J., joined by Quillan & Webb, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]