City of LaGrange v. Whatley, 246 S.E.2d 5

246 S.E.2d 5 | Ga. Ct. App. | 1978

146 Ga. App. 174 (1978) 246 S.E.2d 5

CITY OF LaGRANGE
v.
WHATLEY.

55845.

Court of Appeals of Georgia.

Submitted May 2, 1978. Decided May 17, 1978. Rehearing Denied June 9, 1978.

Lewis, Hunnicutt, Taylor & Daniel, James R. Lewis, J. Wayne Hadden, for appellant.

H. J. Thomas, Jr., James E. Weldon, for appellee.

SMITH, Judge.

Appellant comes to this court by way of interlocutory appeal from the denial of its motion for a summary judgment. We reverse.

Appellee filed his complaint against appellant, alleging damages by virtue of a nuisance created and maintained by appellant. The alleged nuisance was a city sewer line that backed sewage up into appellee's home one time. Appellee testified that the one and only time sewage backed up into his home was February 7, 1977. There being no evidence here to establish that the City of LaGrange had created or was maintaining a nuisance, the trial court erred in denying appellant's motion for summary judgment. The case of City of East Point v. Terhune, 144 Ga. App. 865 (242 SE2d 728) (1978) controls the case at bar.

Judgment reversed. Deen, P. J., and Banke, J., concur.