47 Ga. 260 | Ga. | 1872
Lead Opinion
This was an action brought by the plaintiff against the defendants to recover damages for causing water to be thrown upon the plaintiff’s land by the construction of their drains and sewers from the eity of Augusta, for the benefit of the city. On the trial of the case, the jury found a verdict for the defendants. A motion was made for a new trial, on the several grounds of error set forth in the record, which was overruled and the plaintiff excepted. The Court charged the jury, in addition to other charges given to them, “ that if the plaintiff purchased any land liable to overflow from the drains of the city of Augusta, it was his misfortune, and he could not recover, as a man must purchase land subject to overflow, from any natural cause, at his own risk.” This charge of the Court, in view of the facts of the case, was error, in my judgment. Whilst it may be true, as a general rule, that if a man purchases land subject to overflow from natural causes, he purchases it at his own risk, still, that general rule was not applicable to the facts of this case. The plaintiff’s land was below the city, and if it was overflowed by water which naturally accumulated by the rains which fell upon the city and the surrounding more elevated land, and naturally run down towards and upon the plaintiff’s land, over other land between the city and the plaintiff’s land, as the God of nature made it to run, then the plaintiff could not recover; but that is not the case made by the evidence in the record. The water which falls upon the city by natural rains, as well as that which had been Introduced into the eity for manufacturing and other purposes, is concentrated into drains and sewers, constructed by the defendants for the benefit of the city, and is thus precipitated upon the plaintiff’s land. The water which flows from the
A nuisance, as defined by the law, is anything that worketh hurt, inconvenience or damage to another, and the fact that the act done may otherwise be lawful does not keep it from being a nuisance: Code, 2949. The alienee of the person owning the property injured may sue for a continuance of the nuisance: Code, 2950. As was said by Lumpkin, Judge, in Bonner vs. Wellborn, 7 Georgia Reports, 327, “ so jealous and guarded have been the Courts relative to this matter, that they have steadily ruled that a person never can, by prescription or otherwise, acquire a right to maintain a nuisance.” The prin
The Court also charged the jury, “that it was the duty of every municipal corporation to keep open its drains and sewers, and that if damage ensued from the flowing of water therefrom in its natural, course, the defendants were not liable.” This charge of the Court, as applicable to the facts of the case, was, in my judgment, error. The latter part of it ignores the real question in issue between the parties, to-wit : Whether the defendants, by the construction of their drains and sewers to carry off the water from the city, had thrown a greater quantity of water upon the plaintiff’s land than otherwise would have been there; but the Court in effect told the jury, that if damage ensued to the plaintiff from the flowing of water from the defendants’ drains and sewers, in its natural couibe therein, the defendants were not liable, whether the quantity of water thrown on the plaintiff’s land was increased thereby or not.
The Court further charged the jury, “that if the defendants caused any damage by turning off the water of the Augusta canal through the drains of the city, they were responsible therefor, but that they were not liable for any damage caused by overflowing the banks, or for discharging the waters to avoid overflow.”
This charge, in my judgment, was also error, and calculated to mislead the jury. The effect of the charge was to tell them that the defendants might discharge the water through their drains upon the plaintiff’s land, to avoid an overflow of the same caused by turning off the water of the Augusta canal through the drains of the city, without being liable for any damages. It is true, the Court did not tell the jury, in so many words, that the defendants might discharge the water which run in their drains from the Augusta canal on the plaintiff’s land, to prevent an overflow of their drains, without being liable for damages; but where else was the
Let the judgment of the Court below be reversed.
Concurrence Opinion
concurring.
I do not entertain a doubt but that the right to flow water upon another’s land is an easement that may be acquired by prescription — that is, by twenty years’ uninterrupted enjoyment of the right. The rule that the statute of limitations
One can acquire the right to the land itself by use and possession, and it would be strange if one could not acquire by the same method a mere easement over it. And the books are full of cases acknowledging the right: 1 B. and P., 400; 3 East, 294; 11 East, 371; 6 East, 208; 1 Camp, 263; 2 Brod. & Bing., 667 ; 1 Sim. & Stuart, 203; 3 B. & A., 76. I think,.for this reason, that the right to throw the surface water falling on the city into the river, by a ditch or drain through this land, if it has been exercised for twenty years by the city without interruption, is established by prescription. But I think, also, that the surface water which falls from heaven over land and has not got into a stream, belongs to the owner, and he can use it or turn it at his pleasure. If he keeps his land ploughed, so that it sinks into the earth, or if he builds houses upon his land, or paves it so that the water must run off over other lower land, in either case he does no legal hurt. This is a natural servitude which the lower land owes to the higher, and cultivation and improvement would be impossible if the rules applying to running streams were to extend to surface water: See Angelí on Water Courses, section 108, (a,) where the subject is fully discussed and the authorities cited. But I think the city has no right to introduce water by a canal, so as to make an artificial stream, and so use that water
There is no pretence that this canal has been for twenty years pouring water over this land. There is evidence, however, that it does often happen that the water from the canal is let off through the ditches, and that the land of the plaintiff is flooded thereby, and we think the law ought to have been given to the jury on this evidence. As to the natural drainage of the city — waste water used by the people, etc. — we think the lower land must bear the burden of it; but tbe escape water of tbe canal — the flow from its overrunning its gates, etc. — are a wrong, if such flow exists, to the plaintiff, which the city has no right to inflict, and we think the case ought to go back and be rebeard on this point. As we understand tbe case, even the statute of limitations does not help this view of it, as the canal has been used to overflow in this way for the period of twenty years.
