29 S.E.2d 437 | Ga. Ct. App. | 1944
The petition stated an improper measure of damages for an injury to the use of the property, caused by a remediable and temporary nuisance. Even though the petition otherwise stated a cause of action, this was a defect subjecting it to special demurrer on the ground that the plaintiffs had not alleged the proper measure of damages, and the judge erred in not sustaining such special demurrer.
The petition first alleges evidentiary facts, which would authorize a recovery for an injury to the use of the property on account of an injury caused by a remediable or temporary nuisance, but does not allege the measure of damages for such a wrong, to wit, the depreciation of the usable value of the property, based on discomfort and annoyance, which is injurious to health, during the time that the nuisance continued, and within the period of the statute of limitations. The petition then alleges, in paragraph 11: "That in addition to such nuisance, said sewer is gradually washing away your petitioners' lot all along the southern line thereof, and has so washed away such land that it has all but undermined their residence and the store located thereon, and unless something is done, it will eventually undermine the foundation of said property and entirely ruin the same." Thus, in addition to the damage to the use of the property, which would be damage to an estate less than a freehold, there are also allegations in the petition of evidentiary facts which would authorize a recovery for an injury to the intrinsic value of the property itself, which, under the allegation of this petition, is a freehold estate; and the measure of damages to the injury of the freehold estate would be the diminution in the market value resulting from the injury to the freehold. The petition, in paragraph 13, then alleges: "That your petitioners' property above described, without such continuing nuisance, is worth *688 the sum of $8000, but that with such continuing nuisance being maintained, it is not worth more than $1000, if that much." The plaintiffs then pray generally "that they have judgment against the defendant in the sum of $7000."
It is conceded that the defendant's general demurrer was properly overruled. The only remaining question in this case is whether the court erred in overruling the special demurrer on the ground that, "under the allegations of the petition, plaintiffs have not alleged the proper measure of damage." The difficulty here arise as to the measure of damages. The rule on the subject is: "If the nuisance is not of a permanent character, but such as the city may at will abate, and when abated the injury occasioned by its maintenance will cease, the plaintiff can recover merely the damages which he has sustained within the period prescribed by the statute of limitations for bringing a suit of this character. But if the nuisance is of a permanent and continuing character, the plaintiff may recover in one action all the damages, past and future, which the maintenance of the nuisance has occasioned and will occasion in the future. Reid v.Atlanta,
The allegations of the petition that could be used as a basis for recovery are imperfect, as they relate to the measure of the whole or entire damages sued for; yet the defendant is confronted with the rule stated in Ford v. Fargason,
The case of Langley v. City Council of Augusta, supra, as in the instant case, dealt with a caving ditch which injured the freehold, and with the operation of a ditch so as to constitute it an abatable nuisance. However, in that case there was no special demurrer raising the question of the improper measure of damages, and the rule in Ford v. Fargason, supra, was applicable; whereas, in the instant case there was a special demurrer on the ground that the petition did not allege the proper measure of damages, and the rule in City Council ofAugusta v. Lamar, supra, was applicable.
The cases cited in the brief of the defendant in error are distinguishable from the instant case by their particular facts.
The judge erred in overruling the special demurrer.
Judgment reversed. Broyles, C. J., and Gardner, J., concur.