166 Ga. 323 | Ga. | 1918
Loughridge brought' an action for damages against the City of Dalton) alleging that because of certain septic tanks so constructed by the city as to emit noxious gases and odors, and by reason of the enlargement of the city gas plant, a continuing nuisance had been created on his farm; that the source of a small 'creek or branch flowing through his farm is a large spring about one mile west of his farm; that the waters of the stream were pure and healthy, and that but for the conduct of the city in maintaining the nuisance the water in this stream would reach his farm practically pure. Prior to the erection of the tanks and the enlarging of the gas plant petitioner and his tenants used the waters of the stream for all domestic farm purposes. By means of a large sewer the city empties into a tank all sorts of fecal, filthy substances,, and what flows from the tanks is in the same condition. All kind of filthy fecal matter flows from said tank and empties into the branch, which empties into the creek within a short distance from petitioner’s home, whereby the waters of the creek are made extremely filthy. The odors from it are such that petitioner can not enjoy his home. His meadow is ruined. The waters in the small branch are. slow and sluggish, and the filthy matter hangs to the grass and reeds along its banks and accumulates in pools and adheres to the rocks, and when it rains and flushes the branch this filthy matter spreads out over the meadow and ruins the hay, etc. It is alleged that what is being done creates a continuing nuisance, to the damage of the petitioner for the past four years in the sum of $5000, for which he prays judgment; and he also prays that the City of Dalton be enjoined from continuing this nuisance. At the appearance' term (October term, 1926) the City of Dalton demurred to the petition. In response to certain of the special demurrers the court required amendments in certain particulars, and the petitioner complied with these requirements. The court then overruled the general demurrer. No formal order was taken .adjourning the July term, 1927. On October 5, 1927, the court sustained a general motion by the defendant to dismiss the action. The plaintiff excepted, .assigning error upon the judgment dismissing the petition upon
We are of the opinion that the court was not empowered by law to set aside its previous ruling which stood unreversed, and which had become the law of the case until reversed upon review in an appellate court. In Georgia Northern R. Co. v. Hutchins, 119 Ga. 504 (46 S. E. 659), this court held that “If the defendant calls in question by demurrer the sufficiency of the petition, and the court renders a decision holding that the petition sets forth a cause of action, so, long as this decision stands unreversed the defendant is precluded from calling in question the sufficiency of the petition by oral motion to dismiss.” There is no difference between the facts in the Hutchins case and in the case at bar, except that in the Hutchins case the motion to dismiss was made orally, and in the present ease this motion was reduced to writing. Though a motion to strike, or to dismiss, is in law tantamount in nature and effect to a general demurrer, which must be reduced to writing, the use of the word “oral” in the first headnote quoted is not material. Obviously the term “oral” was not used to denote any difference between an oral motion to strike and such a motion reduced to writing. This plainly appears from the second headnote in the Hutchins case, in which the court held: “A judgment on demurrer, until reversed, concludes the parties upon all questions necessarily Involved in the decision of the points raised in the demurrer.” ■ The use of this language plainly shows that the decision of the court would have been the same had the motion to strike been reduced to writing (as is the case before us) instead of having been made orally, as it happened in the Hutchins case. The facts in the present case are very similar to those in the Hutchins case, where and in the first division of the opinion it was said: “If the defendant had filed no demurrer to the petition, or had withdrawn the demurrers or failed to press, the same, .•
As to whether the facts alleged are sufficient to constitute a cause of action, and whether the damages sought to be recovered are of such a character as to be the basis of" a legal recovery,” it is not proper for us to determine, as these questions were concluded by the judgment upon the demurrers. So the judgment sustaining the motion to strike, which was filed after the appearance term, and upon which error is assigned in the main bill of exceptions, must be reversed.
The facts as alleged in the petition in this case show the plaintiff to be the owner of the land in question and in possession thereof. It does not appear that he has at any time consented to the maintenance of the nuisance alleged. Even if he had consented to the original pollution of his stream, he was entitled to an injunction, under the facts alleged, and as a continuing trespass has been committed upon his land for the last four years by the discharge of á much larger quantity of sewage than was turned down the stream .prior to the construction of the septic tanks and the large 'sewer which is alleged to have been laid above his land for the purpose of massing the new accretions of tar from the enlarged gas works with the increased quantity of sewage and discharging it not only in the channel of the creek but causing it to be discharged in time of high water over his meadows and on hay cut therefrom. While the petition might have been subject to special.demurrer, its allegations were sufficient to withstand the general demurrer which was correctly overruled by the trial court. See Williams v. Seaboard Air-Line Ry. Co., 165 Ga. 655. (141 S. E. 805). As in that case, so in this, there has 'been no actual taking of ’the plaintiff’s land. He is still in possession. His rights have been 'invaded by A nuisance, and the ruling in Howard v. Bibb County, 127 Ga. 291 (56 S. E. 418), is not in point. The cases of Burrus v. Columbus, 105 Ga. 42 (31 S. E. 124), and Long v. Elberton, 109 Ga. 28 (34 S. E. 33, 46 L. R. A. 428, 77 Am. St. R. 363), are not in point. According to the petition in this case three nuisances maintained by the city are discharged into the creek running through his land, which he has the right freely to enjoy. It is hard to compute the value of a Stream of pure water running through a farm. See 29 Óyc. 1162. The tanks in this case were built less than twenty years ago, and it is alleged that they-are underground, that they are too small, and do not operate so as not to be foul and filthy, and are so operated that the discharge from the tanks is foul, filthy, and unsanitary. It-is further alleged that the City of Dalton has greatly increased in: population, causing the building of more sewers and
So we are of the opinion that the court correctly overruled the general demurrer to the petition in this'case; and accordingly the judgment of the eoúrt upon the cross^-bill of exceptions is affirmed.
Judgment on maim bill of exceptions reversed; on cross-bill affirmed.