99 Ga. App. 670 | Ga. Ct. App. | 1959
A general demurrer denies the right of the plaintiff to the relief sought while admitting all properly pleaded allegations in the petition to be true. Code § 81-304. While a petition on general demurrer must be construed most strongly against the pleader, yet the test as to whether a petition can withstand a general demurrer is, can the defendant admit all of the properly pleaded allegations therein and still escape liability. Harvey v. Zell, 87 Ga. App. 280, 284 (73 S. E. 2d 605). “A cause of action is made up of two elements; namely, a duty and a breach of it” (Bell v. Fitz, 84 Ga. App. 220, 223, 66 S. E. 2d 108); and, “Where a petition sets out a cause of action under any legal theory it is good as against general demurrer.” Hall v. John Hancock Mutual Lije Ins. Co., 50 Ga. App. 625 (2) (179 S. E. 183); Yopp v. Johnson, 51 Ga. App. 925 (2) (181 S. E. 596). As against a general demurrer, general allegations are sufficient. Morgan v. Limbaugh, 75 Ga. App. 663 (44 S. E. 2d 394).
In the instant ease, the defendant Clarke County School District was created by the act approved March 7, 1955 (Ga. L. 1955, p. 3057 et seq.), and by that act its powers and rights and liabilities were defined. By Section 10' it was given the right to sue and be sued, and to acquire property by eminent domain together with all the remedies necessary to execute such powers provided under any of the existing laws of the State. (Ga. L. 1955, p. 3066). Insofar as the allegations of the plaintiffs’ petition are drawn in question by the general demurrer, they show an existing property right which has been damaged by the acts of the defendant, and these allegations bring the case within the purview of the following broad general propositions of law: “For every right there shall be a remedy, and every court having jurisdiction of the one may if necessary frame the other” (Code § 3-105); “and ’for every injury done
We thus have in the instant case a constitutional right and alleged violation thereof by a political subdivision of the State declared by statute to be subject to suit, the plaintiffs suing in a court of competent jurisdiction (Code § 24-2615 (1)), and provisions for an appropriate remedy, namely, the payment of compensation for the damage doné. The nature of the action here is to' be determined by the intrinsic contents of the petition, the recitals of fact therein, the nature of the wrong sought to be remedied, and the kind ’ of relief sought. Price v. Fidelity Trust Co., 74 Ga. App. 836 (1) (41 S. E. 2d 614). Properly construed, the petition in this case seeks only the recovery of compensation for property damaged by a political subdivision of the State in consequence of improvements made to its property by reason of which the plaintiffs allege they suffered damages in violation of the constitutional provision above quoted. It is not a suit in tort or for damages flowing merely from an improper or defective or negligent construction or maintenance of a public improvement. Neither is the petition subject to the construction that it is for damages resulting from an abate-able continuing nuisance.
But, it is contended by the plaintiffs in error that, if this be a suit to recover compensation for property damaged as a result of the construction of the public improvement, the wrong measure of damages is alleged. However, this is a matter which may be reached only by special demurrer, and no special demurrer was filed in this case pointing out this defect. Sikes v. Foster, 74 Ga. App. 350, 355 (39 S. E. 2d 585). “The general rule is that where property is damaged for public purposes the measure of damages is the difference between the market value before and after the damage. No measure is fixed by the legislature, and' the courts have laid down the general rule for the
As we have said in holding that the petition in this case sets forth a cause of action, we are not to be understood as sustaining it for the purpose of treating the work or its results as a nuisance to plaintiffs’ premises, but only for the purpose of recovering damages resulting from the defendant’s exercise of its power of eminent domain. “The work done is to be, treated as rightful in all respects save in the omission to pay compensation.” Smith v. Floyd County, 85 Ga. 420, 425 (11 S. E. 850).
Nothing in Howard v. County of Bibb, 127 Ga. 291 (56 S. E. 418), or in Floyd County v. Fincher, 169 Ga. 460 (150 S. E. 577), requires a ruling different from that here made. In the Howard case, the plaintiff did not seek to recover damages for injuries to his land, or for injuries to any right of use or enjoyment of the land, nor was it alleged that the land was less valuable then, that is, after the injury, than formerly. The damages sought to be recovered there were for the value of a milch cow which allegedly died as a result of the condition
Neither is any question raised by the demurrers as to duplicity in the petition after amendment or as to whether the petition as 'amended attempted to set up a new cause of action different from that originally set forth in the petition. These are matters for special demurrer, and no special demurrers specifically raising these questions were filed in this case. Simpson v. Jacobs Pharmacy Co., 76 Ga. App. 232 (2) (45 S. E. 2d 678); Aycock v. Williams, 185 Ga. 585 (1) (196 S. E. 54).
Counsel for the plaintiff in error do not insist, in their argument before this court, on the one ground of special demurrer which they did file in the trial court, and we accordingly treat the same as having been abandoned.
In the first special ground of the motion for a new trial, it is contended that the court erred in admitting in evidence, over objection of the defendant, two drawings made by the plaintiff Dieball, one representing, as contended by him, the east-west profiles of the defendant’s property before and after the grading was done, and the other representing and showing the before and after grading north-south profiles of the property and showing their relationship to the street on which the plaintiffs’ property was situated and the plaintiffs’ houses. The plaintiff Dieball admitted in his testimony that he drew the diagrams from memory and without the aid of a topographical survey of the defendant’s property, but he, contended that he was familiar with the property, that he had walked over it both before and after the grading was done, and that they reasonably represented the profiles of the property both before and after the grading. It is contended in this ground of the motion for a new trial that, in view of the plaintiff Dieball’s testimony that these drawings were not drawn to any scale, were not based on any measurements and were simply a guess as to what the terrain was before and after the grading, and
Special ground'2 complains of the following portion of the charge: “I charge you that where the owner of a higher lot constructs - and maintains culverts or embankments to control the flow of surface waters over his lot, he is under a duty to the lower lot owner to construct and maintain such culverts and embankments so that the accumulation of waters will not cause breaks in the embankments and flood the lower lot,”
Special ground 3 complains, of the following additional- portion of the charge: “I' charge you further that the owner of land through which nonnavigable water courses flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such detention or diminution, if there be such, as may be caused by a reasonable use of it by other riparian owners; and the diverting of the stream, wholly or in part, from the same, or the obstruction thereof so as to impede its course or cause it to overflow or injure his land, or any right appurtenant thereto, or the pollution thereof so as to lessen its value to him, shall be a trespass upon his property.
“A fixed course over which surface water from adjoining land is uniformly discharged at a definite point is a watercourse within the rule prohibiting one from filling up the watercourse
“A stream may be wholly dry at times without losing its character of a watercourse.”
The gist of the assignments of error contained in these grounds of the motion is that the portions of the charge complained of were inapplicable to any issue in the case, and for this reason were confusing and misleading to the juiy. These assignments of error are meritorious. “A charge which injects into the case and submits1 for the jury’s consideration issues not made by the pleadings or the evidence, tends to confuse the- jury as to the true issue in the case, is probably harmful to the defendant, and is error requiring the grant of a new trial. Citizens Bank of Roswell v. Reese, 145 Ga. 110 (2) (88 S. E. 570); Clark v. Griffon, 207 Ga. 255 (3) (61 S. E. 2d 128); Morris v. Stanford, 53 Ga. App. 722 (1) (187 S. E. 159); Ingram, & LeGrand Lumber Co. v. McAllister, 62 Ga. App. 50 (7 S. E. 2d 784); Ergle v. Davidson, 69 Ga. App. 102 (24 S. E. 2d 810); Parker v. Ford, 70 Ga. App. 714 (1) (29 S. E. 2d 184); Atlantic Co. v. Taylor, 82 Ga. App. 361 (5) (61 S. E. 2d 204). This is particularly true where the evidence on the issues really involved is conflicting. Clark v. Griffon, supra.” Atlantic Coast Line R. Co. v. Strickland, 87 Ga. App. 596, 615 (74 S. E. 2d 897). As was said in Jessup v. Humphreys, 46 Ga. App. 68, 69 (166 S. E. 681), “It is enough for a jury to be called upon to apply the appropriate law to the facts of a case; and where, in a case like this, the court charges two rather lengthy and difficult Code sections, neither of which is applicable to the issues in the case, we can not escape the conclusion that his charge was confusing to the jury and probably harmful to the defendants.” The evidence in the instant case was in sharp conflict as to whether the defendant had merely leveled its land and thereby retained the original dividing line with respect .to the run-off of water therefrom or, as contended by the plaintiffs, had so changed the contour as to incorporate into the drainage area which drained onto the plaintiffs’ land a much larger portion of their property. There is no contention made by the plaintiffs either in their pleadings or in their evidence that the defendant had constructed
Special grounds 4 and 5 complain of the following portions of the charge: “If the injury is permanent in its nature, the measure of damage would be the diminution of the market value of the land overflowed.
“And even if the wrongful act caused an increase in such market value, the wrongdoer would nevertheless be, liable for the actual damages resulting from injuries to his land, and from a diminution in the value of the premises for use. While in such case there could be no recovery for loss in market value if the same was in fact increased in value, the amount of the increase could not be set off against such actual damages so as to prevent a recovery for the actual damages. That, gentlemen, refers to the damage to the land itself.”
“I charge you further that general damages, under the law, are such as the law presumes -to flow from any wrongful act, which the law denominates a tort, and may be recovered without proof of any amount.
“Special damages are such as actually flow from the act and must be proved in order to be recovered.
“I further charge you, our Code provides that direct damages are such as follow immediately upon the act done. Consequential damages' are such as are necessary and connected effects
The substance of the complaint levied against these portions of the charge in these grounds of the motion is that they submitted an improper and incorrect measure of damages appropriate only to a tort action, and that under these circumstances it was confusing and misleading to the jury and injected into the case matter relating to damages which the jury ought not to have considered.
The action in this case was to' recover compensation on account of the damaging of the plaintiffs’ properties as a consequence of a public improvement. In such an action, instructions to the juiy embodying legal propositions relative to the measure of damages and relevant to a suit for tort, are not appropriate. Atlanta Terra Cotta Co. v. Georgia Ry. &c. Co., 132 Ga. 537, 543 (64 S. E. 563); Central Georgia Power Co. v. Mays, 137 Ga. 120 (1) (72 S. E. 900); Georgia Power Co. v. Pittman, 92 Ga. App 673 (1) (89 S. E. 2d 577). It follows that these portions of the charge were erroneous and that the trial court erred in overruling special grounds 4 and 5 of the motion.
The final special ground of the motion for a new trial complains of the refusal of the court to charge a timely written request as follows: “I charge you that under the law creating Clarke County School District (Ga. L. 1955, p. 3057 et seq.), such Clarke County School District is made a political subdivision of the State of Georgia, and said act provides that such Clarke County School District ‘is not to be liable to suit in actions arising ex delicto.’ Therefore, I charge you that in this case, the only theory on which Clarke County School District might be, held liable, if at all, is on the theory that such Clarke County School District has, by its use of property acquired by it for school purposes, caused a permanent damage to the market value of property of plaintiffs, whereby the market value of plaintiffs’ property has been permanently impaired as a necessary incident to the use of property of Clarke County School District for such school purposes.”
The trial court did not err in refusing to give the requested charge. Failure to charge the timely written request is not
Inasmuch as the case is to be tried again and the evidence on another trial may not be the same, no ruling is now made as to whether the evidence authorized the verdict. It is sufficient to say that the evidence did not demand a verdict for the defendant, and the trial court did not err in refusing to direct a verdict for the defendant and in thereafter refusing to grant a judgment n. o. v. The four plaintiffs testified in substance that they had no drainage or water problems on their lots prior to the time the grading was done oni the defendant’s property, and that thereafter they were troubled each time it rained with excessive run-off and the washing -of mud, silt and gravel onto their properties. Witnesses for the plaintiffs also testified to facts and circumstances as they had observed them which would authorize -the jury to conclude that the defendant had as contended by the plaintiffs changed in some measure the- drainage area and the direction of drainage on its property. In this respect, the evidence was in sharp conflict, but this conflict was a matter for the jury to resolve, and the trial court did not err in refusing to direct a verdict.
Judgment reversed.