93 Ga. 284 | Ga. | 1893
Judgment reversed.
Lombard sued the,City Council of Augusta for damages resulting from the removal by the defendant of water-gates which had been put in the second level of the Augusta canal at the entrance of the head-race which conveyed the water to the plaintiff’s foundry. A verdict in the plaintiff’s favor was rendered, and the defendant excepted to the overruling of its motion for a new trial. The declaration alleges, that on July 31, 1887, and for a long time before, the plaintiff was and still is the lessee of property in Augusta on the east side of Kollock street, and immediately on the south side of the third level of the Augusta canal, on which property he was carrying on a foundry business, the machinery of which foundry was run by water received from a head-race from the second level of the canal, for which water he pays the defendant a large rental; that at the time of the building or cutting of the head-race, strong and substantial water-gates with solid brick abutments were constructed at the point where the head-race leaves the second level of the canal, and the main object in constructing the water-gates was to regulate and control the volume of water passing through the head-race during periods of very high water in the Savannah river, and consequent high water in the second level of
In addition to the plea of not guilty, the defendant set up the following : The gates were not constructed to regulate and control the volume of water passing through the head-race during periods of very high water in the Savannah river and consequent high water in the second level of the canal, but as head-gates of the raceway for the Excelsior Mills, and the sole object of the construction of the gates was to cut off the water from the race-way for the repair of the same, or for such work as might be necessary in connection with said mills. They were never constructed, fitted for, nor used for flood-gates to control or regulate the volume of
The motion for a new trial contains thirty- four groun ds, the only ones necessary to be stated here being that the verdict is contrary to law and evidence ; that the court erred in charging as stated in the third head-note, and in overruling defendant’s objections to testimony given by the plaintiff and by William Pendleton. These objections were, in brief, that the testimony was irrelevant, tended to confuse the issues before the jury and to put upon the defendant the burden of showing that it was not responsible for the damage resulting from the freshets of 1888 and 1891, and showed merely expressions of opinion on the part of the witnesses, and was in the nature of hearsay. The plaintiff testified, that since the overflow in question he had been injured by high water in 1888 and 1891; that the dam of his shop was washed away at these times; that in 1887 and in 1888 they refilled the banks, but since 1891 they have driven the piling, but the filling has not been done yet. Also, that if these gates had been there the water would not have got in his yard and done the damage it did. Also, that he did not think he should have leased the property if he had known the gates were going to be removed. Also, that in 1891 the defendant made an effort to dam the water and keep it out of Kollock street, by hauling plank and putting them on the west side and hauling sand-bags and throwing them in to stop the water; that this would not have been necessary if the gates had been in there as they were before; that in the freshet of 1888, he saw the water run over the banks of the canal, and