Central Railroad v. English

73 Ga. 366 | Ga. | 1884

Blandford, Justice.

1. The only complaint upon the part of the plaintiff in error as to the action of the court below is, that the court refused to charge the jury, as requested, that if the plaintiff below could have avoided the injury to himself, then he cannot recover.

Under the facts of this case, we think the court did right to refuse this request. It appeared that defendant in error rented from one Flournoy certain lands for the year 1877; that he knew that plaintiff in error maintained a nuisance on this land, which was a pond of water, which affected the health of his family; that with this knowledge, he rented the place for 1878, when it became more sickly, so much so that he was unable to gather his crops.

The landlord had the right to use and occupy this land; when he leased the same to English, he had the same rights which the landlord had; he had a right to presume that the railroad company would abate this nuisance; the law did not require him to move away, but did require the railroad company to abate the nuisance; hence the refusal to charge as requested was right.

2. The only other ground of error is, that English rhould have notified the Central Railroad to abate the nuisance, and that, having failed to do so, he could not recover.

It is true that the Southwestern Railroad Company originally erected the nuisance, and that the Central Railroad became the lessee of the Southwestern Railroad. It furthermore appears that the landlord, Flournoy, had notified the Central Railroad, after it became the lessee of this road, of this nuisance, by notifying the president and other officers of this corporation; and that English himself had notified the section-master of this nuisance. This was sufficient notice and a sufficient demand. 7 Ga., 296; Code, §3001. If the plaintiff in error had notice of the nuisance, then this is all that is required before action brought. 7 Ga., 296.

Judgment affirmed.