11 S.E.2d 696 | Ga. Ct. App. | 1940
The allegations of the petition, properly construed, do not show that the defendant created or maintained a nuisance as against the plaintiff, but only that the laying of the sewerage pipes complained of damaged the plaintiff because of the depreciation of her property as the result of overflow of water from such pipes. In such a case the only damages recoverable are under the constitutional provision that "private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid;" and as the petition affirmatively shows that the right of action accrued more than four years before the bringing of the suit, the court did not err in sustaining the demurrer on the ground that the action was barred by the statute of limitations.
The defendant demurred to the petition on the ground that it sought to recover permanent damages for the depreciation of the value of the plaintiff's property, and that the petition showed upon its face that the alleged act which caused the damage had occurred more than four years prior to the filing of the suit, and on the further ground that the allegations of the petition did not show that it was a continuing damage, but that the damage became complete and was complete more than four years prior to the filing of the suit and that the allegations of the petition did not show a continuing trespass. The court sustained the demurrer and the exception here is to that judgment.
The plaintiff in error contends that the petition shows that the city was maintaining an abatable and continuing nuisance, and that for every act recurring she is entitled to bring an action, and that the court erred in sustaining the demurrer on the theory that the cause of action was one for permanent damage to her property, suit for which must be brought within four years from the accrual of the right of action. With this view we can not agree. The City of LaGrange had authority under its charter to *589
construct a system of sewers and to run the pipes upon the land of another. Ga. L. 1901, p. 477, §§ 43, 44. Whether a nuisance is shown to have been maintained must be determined by an investigation of whether the city constructed the work in an unskilful and improper manner, or negligently maintained the sewers, or whether, as constructed, the work injuriously affected the health of the plaintiff. The applicable law is stated in Southland Coffee Co. v. Macon,
It is not alleged in the petition that the work done by the city was performed in an unskilful or improper manner or negligently maintained or that it was dangerous to the health or life of the plaintiff. Hence, no nuisance is shown. The petition discloses at most only that the plaintiff has been damaged by reason of the depreciation of her property through an act which was authorized by the legislature. Even though the city had authority to do the work and no negligence is shown in the creation or maintenance of the sewage pipes, the plaintiff, because of the alleged damage to her property, would ordinarily be entitled to recover under the constitutional provision that "Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid." Code, § 2-301. However, it appears from the petition that the work which resulted in the damage complained of was done about the year 1921, and as more than four years have elapsed before the bringing of the present action the suit is barred by the statute of limitations. Code, § 3-1001; City of LaFayette v.Hagood,
The cases cited and relied on by the plaintiff in error are distinguishable *591 on their facts, inasmuch as they involve situations where the work done was dangerous to the life or health of the plaintiff and obviously constituted a nuisance.
Judgment affirmed. Stephens, P. J., and Felton, J.,concur.