115 Ga. 337 | Ga. | 1902
The error assigned in the bill of exceptions sued out in this case is that the court below erred in dismissing an action brought by Mulligan against the City Council of Augusta, the purpose of which was to recover compensation for damages alleged to have been sustained by the plaintiff by reason of large quantities of water, polluted with sewage, being periodically discharged upon a city lot of which he was the owner. In his petition he undertook to describe the location and character of various sewers in the neighborhood of this lot, and alleged that, because of certain changes made by the city in its sewerage system, too great a servitude was placed upon one of these sewers, with the result that “ since the year 1898, . . after usual and ordinary rainfalls, petitioner’s lot has been flooded by water backed up from” said sewer, and foul sewage deposited upon his premises. It was further alleged that “ said water has undermined the foundations of his store and residence, and, unless the periodical flooding of his premises is prevented, there is likely to be further damage to his said buildings; that his said lot is rendered useless for any purpose whatever, and sickness is likely to follow the deposit of sewage and water under his house and upon his premises.” He also sought to recover damages arising out of a change made in the grade of the street upon which his lot fronted; but by an amendment, offered and allowed at the trial term of the case, all allegations in regard thereto were stricken from his petition. At that term the city was allowed, over his objection, to amend an answer, which it had in due time filed, by setting up the defense that his action was barred by a former recovery against it in a suit, predicated upon the same cause of action, which he had instituted on the 27th day of June, 1896. There is, however, in his bill .of exceptions no assignment of error upon the allowance of this amendment. Before the introduction of any evidence, counsel for the city made an oral motion to dismiss the plaintiff’s action, on the ground that he had “recovered of defendant the sum of six hundred dollars for the same cause of action, by overflowing his said land from the same sewer, as shown by the petition, and has been paid said sum, and is, therefore, not entitled to further recovery.” Pending this mo
In excepting to this judgment of dismissal, the plaintiff distinctly makes the point that if his “former recovery was for a partial depreciation of the lot of land and improvements thereof, and since there has been a permanent injury from the same cause, rendering the lot and premises useless for any purpose, the first suit would be no bar to a second suit; ” and that, this being so, the court below erred in dismissing his present action, inasmuch as the allegations set forth in his petition “ relating to former recovery, and relied upon by defendant’s counsel to sustain his motion,” do nob disclose whether the damages recovered in the first suit were “ for the trespass up to the time of bringing the suit, or whether for permanent or prospective damages.” Obviously, this is the correct view to take of the matter. As originally filed, the plaintiff’s petition did not contain even a hint of a former recovery against the city. He went entirely out of his way in offering an amendment in which reference was made thereto; but, as a casual reading of that amendment will show, it did not set forth facts upon which the trial judge could properly base his ruling that the plaintiff’s petition, as thus amended, showed on its face that the cause of action on which he relied was barred by a recovery in a suit previously .instituted. Further comment along this line would seem to be wholly unnecessary.
In view of the fact that the plaintiff sought to recover compensation for damages resulting from the maintenance by the municipal authorities of a nuisance, the question of law raised by the assignment of error just referred to is one as to which no doubt can be seriously entertained. We do nob care to discuss it, or to do more than call attention to a number of pertinent decisions by this court which directly bear thereon. The writer, in Danielly v.
Judgment reversed.
