187 Ga. 243 | Ga. | 1938
Suit for damages and injunction was brought by J. B. Goble against Louisville & Nashville Bailroad Company. The defendant demurred to the petition and to the petition as amended; and the plaintiff demurred to portions of the answer. The court dismissed the action on demurrer, and the plaintiff excepted.
The plaintiff’s right to recover damages, if he proves his case as laid (a brief recital of most of his material allegations is contained in the first headnote) is recognized by an unbroken line of authority from foreign jurisdictions (see 27 B. C. L. 1101, § 37; 67 C. J. 698, § 2), and is supported by a number of rulings from this court which are' hereinafter cited on other features of the ease, and also by the principle found in the Code, § 105-1407., that the owner of land through which a non-navigable watercourse flows is entitled to have the water come to his land in its natural and usual flow, and the obstructing thereof so as to cause it to overflow or injure his land is a trespass. As ’pointed out by Mr. Chief Justice Russell in Robertson v. Arnold, 182 Ga. 664, 672
To wrongfully turn water on the lands of another is a nuisance. Code, § 72-101. A suit to enjoin is a recognized remedy for a nuisance. 2 Cooley on Torts, § 316. It is also a trespass. 1 Cooley on Torts, § 165. Our Code declares: “Equity will not interfere to restrain a trespass, unless the injury shall be irreparable in damages, or the trespasser shall be insolvent, or there shall exist other circumstances which, in the discretion of the court, render the interposition of the writ necessary and proper, among which shall be the avoidance of circuity and multiplicity of actions.” § 55-104. The petition shows that the maintenance of the nuisance had already caused considerable damage to the plaintiff’s lands; that the damage increased from year to year; that the opening
The petition alleged that the trestle and abutments were built before 1910, the trestle being twenty feet in width and about seven feet above the water level; that in 1910 these were partially' washed away, but rebuilt in practically the same manner; that there had been a gradual filling up of the creek under the trestle until about July, 1937, the space thereunder became entirely too small to carry off the water; and that on April 7, 1938, the sand, debris, etc., that had collected on the upper side of the trestle against the embankments and abutments had caused partial obstruction to the flow of the stream. By amendment the plaintiff struck his allegation that in 1910 the defendant rebuilt
regard is in principle directly contrary to what was held in McNabb v. Houser, 171 Ga. 744 (156 S. E. 595, 74 A. L. R. 1122). It was there held: “Something more than mere passivity or inaction upon the part of a riparian owner of lands upon a stream, while another is cleaning out and constructing a ditch at large expense for the purpose of diverting water from such stream, is generally necessary to create an estoppel, although the riparian owner may know of such expenditure and make no objection. In cases of silence there must be not only the right but the duty to speak, before a failure to do so can estop the owner; and where the owner merely stands by and fails to object while the improvements are being constructed, he is not estopped from obtaining relief in equity against the diversion of the water, where the expenditure is made with notice, actual or constructive, of his superior rights, (a) Injunction will lie even where the diversion of the water was complete at the time the application for injunction was made, when it appears that the same was promptly made, and there was no unnecessary delay.”
In Southern Railway Co. v. Cook, 117 Ga. 286 (43 S. E. 697), suit was brought for damages alleged to have been sustained by reason of the defendant having maintained a nuisance in keeping a dam across a stream on the plaintiff’s land, as a result of which his field was inundated and rendered unfit for cultivation. It was held that every continuance of a nuisance which is not permanent, and which could and should be abated, is a fresh nuisance for which a new action will lie. Consequently we must hold that suit may be maintained for damages growing out of a nuisance of the character indicated, where the damages sued for were inflicted within four years before the time of filing suit, though the act which originally caused the nuisance was not done •within the period of limitation of the action. Danielly v. Cheeves, 94 Ga. 263 (2) (21 S. E. 524); City Council of Augusta v. Marks, 124 Ga. 365 (2) (52 S. E. 539), and cit.; Gabbett v. Atlanta, 137 Ga. 180, 183 (73 S. E. 372), and cit.
In Doster v. Brown, 25 Ga. 24 (71 Am. D. 153), Judge McDonald, delivering the opinion, said: “While every shower of rain
Although it did not appear on the face of the petition that the damages set forth were occasioned by an act of God, the defendant set up affirmatively by way of defense that “there was an unusual, unprecedented downpouT of water and rain from the clouds, such as has never been known before or since in the history of the railroad or the county in which it is located,” etc. The plaintiff assigns error on the ruling of the judge in refusing to strike so much of the answer of the defendant as contained the
The fact that in 1887 the defendant’s predecessor in title condemned a portion of the plaintiff’s land where the railroad now runs, and that ever since the defendant has operated its railroad over the same span over Faucett Creek, is not proper matter of defense to the present suit. That the predecessor condemned -a part of the plaintiffs land for railroad purposes, and used the part so condemned, did not authorize it or its successor in title to maintain a nuisance to the damage of the plaintiff’s other near-by property. A railroad company, in its construction and maintenance of its culverts, trestle, and embankments, is bound so to construct and maintain them that the 'accumulation of water from freshets which in the usual course of events are likely to occur will not cause breaks in its embankments and consequent inundation of lands below. Georgia R. &c. Co. v. Bohler, supra. Though 'the defendant is a railway corporation authorized by its charter to condemn land and to build and operate a railroad, it does not follow that railroad works authorized by statute can not become a nuisance by their improper construction or by their negligent and improper use after a proper construction. Ga. R. &c. Co. v. Maddox, 116 Ga. 64, 69 (42 S. E. 315). It was erroneous to overrule the demurrer to this portion of the answer.
It is insisted by the defendant that since it appears from tire petition that it has maintained its trestle across the creek for more than twenty years, it has acquired a prescriptive easement thereto, and therefore has acquired the right to throw wafer on the lands of the plaintiff. We think the insistence contains a non sequitur. Its right to maintain a trestle with embankments on either side is not in dispute. Nor will it be denied that the right to throw water on the lands of another may lie acquired by prescription. But it does not follow that because the defendant has had a trestle over this creek for more than twenty years it has thereby acquired the
In order for the petition to have been fatally defective for the reason that it showed a prescriptive easement by the defendant, it must have shown all the elements as detailed in the Code, § 85-402. This the petition in the instant case does not do. Almost all the cases on this subject examined by us were cases where land was flooded by a mill-dam, and the land Avas completely or almost completely covered with water for a period of twenty years or more. None of the decisions next hereafter mentioned, to which we are referred by counsel for the defendant, militate against the
In the opinion as originally rendered we said that it was inferable from the order dismissing the action that the judge did not actually pass upon the special demurrers, and therefore that we should not undertake to do so, but in remanding the ease would leave open for subsequent determination by the trial court such questions as were presented by the special demurrers. We cited Simpson v. Sanders, 130 Ga. 265, 271 (60 S. E. 541). In a motion for rehearing counsel insist that under this record this court is bound to presume that the judge of the superior court did pass upon all the demurrers, general and special; and that the judgment should be affirmed if the petition was properly dismissed for any reason set forth in any ground of demurrer. Upon consideration of the motion, we have concluded to examine into each of the grounds of special demurrer. Paragraphs (a), (b), (c), and (d) of ground 1 of the “special demurrer” are in reality but amplifications of the contentions raised by the general demurrer, and are covered by our rulings already made. This is likewise true of paragraphs (a), (b), and (c) of ground 3; and of paragraphs (a), (b), (e), (d), (f), and (g) of ground 5, grounds 6, 7, 8, and 9. Paragraph (e) of ground 1 assumes that the plaintiff is suing for damages to his land that occurred before April 7, 1938, and calls on'him to show the amount of damages for each of four years. This is an erroneous assumption, since the plaintiff is only suing for injuries alleged to have been received on April 7, 1938. This paragraph of the demurrer is without merit.
Ground 2 of the special demurrer is directed to paragraph 18 of the petition, wherein it is alleged in substance that the plaintiff, before the date of the alleged injury, notified the defendant in writing of the condition of the fill and trestle, and, the defendant failing to remedy the same, he notified it in writing the second time, protesting against its continuation in the condition it was in; but the defendant continued to fail to make any effort to remedy the same. The demurrer to this paragraph is based on the conten
Paragraph (d) of ground 3 of the demurrer is directed to a part of paragraph 22 of the petition, where it is alleged that the plaintiff, during the past four years, called the defendant’s attention “to the great damage its negligent maintenance of said obstruction and trestle in Faucett Creek was causing him as herein alleged.” This was demurred to on the ground that no dates were given, nor the name of the representative or officer of the defendant to whom the notice was given. This paragraph of the demurrer was not well taken, in view of the allegations in paragraph 18 of the petition. The dates were there given, and the further statement there made that the notice was given by writing “the defendant at its office in Louisville, Kentucky.”
Paragraph (b) of ground 4, which complains that the petition fails to allege whether it is a public or a private nuisance, is without merit.
Ground 10 of the demurrer is addressed to the prayer for exemplary damages. We think that the allegations with respect thereto, which have been heretofore referred to, are sufficient to support the prayer; and hence that portion of the demurrer should be overruled.
When the amendment to the petition was allowed, the defendant filed a special demurrer and renewed its general and special demurrers which had been theretofore filed. We have in subdivision 8 of the opinion ruled on the only two grounds of the demurrer to the amendment that raised any questions of substantive law, and the only ones that were argued, except in the briefest and most general way, in the elaborate brief and argument of counsel for the defendant. But we have scrutinized carefully the remaining grounds of this demurrer. Some of them are grounds appropriate to a general, not a special demurrer, and have already been dealt with in substance. Others call for more particular and minute information as to the depth of the stream, the depth of the soil that was washed away, the identical place where the holes were washed
Judgment reversed.