104 Ga. 184 | Ga. | 1898
The question for consideration is, whether the recovery in the former suit was a bar to the last action. By comparing the two petitions, which are fully set forth in the reporter’s statement of the case, it will be seen that, with the exceptions that the first petition prays for equitable relief and the second does not, and the difference between the amounts of damages sued for, the two suits arepdentically the same. As there was no evidence whatever introduced upon the trial of the last case to support the allegations with reference to damage to the plaintiff’s home, by reason of injury to its healthfulness, etc., our inquiry will be confined to the question, whether the recovery by the plaintiff in the first suit debarred her from recovering in the second one for damages to the land and timber. We are clearly of opinion that it did. In the first suit it was alleged that, in consequence of the erection and maintenance of the dam by the defendant, certain described land of the plaintiff and the timber thereon had been rendered worthless and of no.value, “in all to her damage $1,000.00,” for which she prayed judgment. These allegations made this first suit an action for the recovery of the entire damages, resulting to the plaintiff’s land and timber described in the petition, by reason of the erection and maintenance of the dam by defendant. The nuisance and the damage inflicted thereby were treated as permanent, and when plaintiff recovered in such action, her right to maintain another suit for damages from the same cause to the same property was barred. The
Judgment affirmed.