137 Ga. 180 | Ga. | 1911
Sarah E. Gabbett instituted suit for damages against the City of Atlanta. The original petition alleged: that plaintiff owned described land in that city, through which the municipality constructed and maintained certain sewers as a part of the sewerage system of the city, “and in times of rain, which frequently occur, and especially of heavy rains, which are not infrequent, said sewers become filled with water and sewage, and become strained and burst, and overflow your petitioner’s said land with water and sewage filth, so that the same is rendered unfit for cultivation or pasturage, whereby your petitioner is deprived of the profit from said land to which she is entitled and which she wohld otherwise receive. Said land is wholly and totally unfit for cultivation or pasturage, or for any useful or profitable purpose whatever, caused by said repeated overflows and the deposit of filth upon the same. And your petitioner avers that said conditions have existed for more than ten years, and that said land has become permanently unsuited for cultivation or pasturage, or for any useful or profitable purpose whatever.” Also: “Any vegetable crops your petitioner might raise upon said land, if the same could bo raised at all on account of the repeated overflows of the same, and the grasses on said land, would be and are totally unfit for use, because of the poisonous sewage matter that becomes deposited on
“1. The declaration as amended presents a new and distinct cause of action from the case made in original petition. This defendant says that the original suit was brought to recover damages to land, and the amendment seeks to bring an action as for a nuisance.
“2. The original declaration was barred on its face, and therefore there was nothing to amend by.
“3. The original declaration being by its terms barred, it is not permissible to so amend as to save the declaration from a motion to dismiss based on the original petition.”
Also several grounds of special demurrer were urged. On the hearing the judge ordered that the amendment be disallowed, and that the general demurrer be sustained and the case dismissed. The bill of exceptions assigned error upon this ruling.
Judgment reversed.