151 Ga. 241 | Ga. | 1921
As shown by the allegations of the petition, the action is based on continuance of a nuisance created by the defendant’s grantor in 1902. There is no allegation that the defendant made any change in the dam after its purchase. The evidence as to occasional use of certain flash-boards on top of the dam did not show a change in the use of the dam, because the deed to the defendant shows that the flash-boards constituted a part of the dam at the time of its purchase. Such being its character, the case is not one for application of the ruling in Middlebrooks v. Mayne, 96 Ga. 449 (23 S. E. 398), to the effect that a notice is not “ essential to the maintenance of an action against the alienee for injuries occasioned by changes made by himself in the character or structure of the nuisance.”
The controlling question in this case is whether the grantee or alienee of property causing a nuisance is liable for damages caused
It thus appears that the principle of Penruddock’s case was recognized by the entire bench of three Judges, and that under application of that principle there was no disagreement as to the necessity of giving to an alienee notice to abate the nuisance, before such alienee would become responsible for injuries resulting from such nuisance. The only point of difference was as to the necessity of notice to abate, given to the creator of the nuisance where the person injuriously affected was himself an alienee and did not own the property injured at the time the nuisance was created. The opinions rendered by the Judges, sanctioning as authority the decision in Penruddock’s case, pronounced a principle declaring the responsibility of an alienee for continuing a nuisance created by another. These opinions can not be read without reaching the conclusion that the Judges rendering them contemplated that such responsibility of an alienee would commence with the giving of notice to abate the nuisance. More than ten years after the rendition of that decision the first Civil Code of this State was adopted by the General Assembly, within which appeared the following section (Code of 1863, § 8943): “The alienee of a person owning the property injured may sue for a continuance of the nuisance; so the alienee of the property -causing the nuisance is responsible for a continuance of the same. In the latter case there must be a request to abate, before action brought.” This language has appeared in every subsequent Civil Code of the State, and is now § 4458 of the Code of 1910. This is a codification of the common law as interpreted in the decision of Bonner v. Welborn, supra; and it now has the force of statute law.
The great contention of the plaintiffs is, that the words, “before action brought,” as employed in the code section, denote merely a remedial requirement that notice be given before institution of
• In Southern Railway Co. v. Cook, 106 Ga. 450, 453 (32 S. E. 585), it was said: “If, however, a person come into possession of property upon which there is an existing nuisance, before an action can be maintained against such person for continuing the nuisance it is essential that there should be a request to abate it, before any liability for maintaining the same would arise.” Citing, Bonner v. Welborn, supra; W. & A. R. Co. v. Cox, 93 Ga. 561 (20 S. E. 68); Middlebrooks v. Mayne, supra. So in Blackstock v. Southern Railway Co., 120 Ga. 414, 416 (47 S. E. 902), it is said (immediately after quoting the code section) : “ If before an action can be brought against the alienee of the property causing the nuisance there must be a request to abate the nuisance, then it is evident that no cause of action arises against such alienee until such request is made. The cause of action against him is,' continuing a nuisance after having been notified of its existence and requested to abate it.” What is quoted from the last two cases was necessarily said in showing the difference in the two causes of action under discussion, and therefore was not obiter, as counsel contends. See also 20 R. C, L, 392, § 16, and cases cited under
Giving to the code section the construction that the notice to abate, therein referred to, is not merely remedial, but is a provision that must precede responsibility of such alienee, the Court of Appeals did not err in affirming the judgment granting a nonsuit.
Judgment affirmed.