80 Ga. 114 | Ga. | 1888
Danielly brought bis action against Cheeves to recover damages, for and on account of Cheeves’ having turned a portion of a stream of water known as Yellow creek from its natural flow, by digging a ditch from a point just opposite his (Cheeves’) land on Yellow creek, to a point on
1. The main ground of error assigned in the motion for a new trial, and the one which was chiefly relied on before us, was that the court refused to give in charge section 3072 of the code, which section is as follows: “If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrong-doer.” The principles of law announced in this section of the code are very difficult of application to any particular case or given state of facts; and upon the question of their application judges of the same court and of the highest courts of this country have differed. To understand this section, we think it is necessary that it should be construed together with other sections of the code immediately connected therewith. Sections 3071 and 3073 are as follows: “4 Direct ’ damages are such as follow immediately upon the act done. ‘Consequential’ damages are such as are the necessary and connected effect of the tortious act, though to some extent depending upon other circumstances.” 44 Damages which are the legal and natural i’esult of the act done, though contingent to some extent, are not too remote to be recovered. But damages traceable to the act, but not its legal or material consequences, are too remote and contingent.” If the act complained of, though it might in some degree contribute to the injury, is so small or, of such character as would not of itself produce the injury, and is of itself an innocent act,
In this case, it appears from the evidence that Yellow creek was turned into Tobesofkee or Big creek opposite to Danielly’s land by Cheeves; that it had never flowed into it at that place before, but that a portion of it flowed into it a mile or more below there; that shortly after this creek was turned in at the point opposite Danielly’s land, the creek commenced filling up with sand, and overflowed his land; that it had never done so before; that Danielly’s land thus became wet, and he was in consequence unable to make any crops upon it and thereby suffered damage. On the other side it was contended that beavers had got to working there, and that a mill-dam had broken above that point, which caused mud and sand to flow in, and that from the clearing of the lands opposite to Danielly’s, sand had flowed in and filled up the creek. It may have been true that there were concurrent causes for the overflow of this creek; that the beavers dammed it up to some extent, and that the flowing in of the sand from adjacent land, and the breaking of the mill-dam above contributed in some degree to the injury; but the question was fairly submitted by the court to the jury, and the court left it with them to say whether the injury complained of was or was not traceable to the act of Cheeves, — -whether his act rea
Judgment affirmed.