23 Ga. App. 732 | Ga. Ct. App. | 1919
P. J. J. A. Eoper brought an action for damages against the administrators of the estate of J. M. Eoberts. The petition alleged that Eoberts, about ten years before this suit was brought, cut a ditch through his land and thereby changed the channel of Yellow Creek, which flowed through it; that this creek also ran through the plaintiff’s land; that in the spring of 1912, after the plaintiff’s land had been plowed for planting, the new or arti
In our opinion the court erred-in sustaining this special demurrer and in striking this paragraph of the declaration. The paragraph. alleged physical facts and was not subject to that ground of the special demurrer which set up that it stated mere conclusions. Nor was the paragraph defective because it failed to set forth. specific acts that Roberts did to cause the channel to become obstructed. The very language of the pleader,- in this ■.paragraph, to wit, “he [Roberts] negligently allowed said ditch or canal to become obstructed and filled up with sand and other debris in places,” negatives the idea that the plaintiff intended to charge Roberts with any overt acts of commission. Instead, it .shows in this paragraph that he bases his suit upon acts of omission by. Roberts, in negligently allowing or permitting the canal to become obstructed and unable to carry the waters of the creek. To set forth a. cause of action it was not necessary to allege jovert acts of negligence on the part of Roberts. See, in this connection, Mayor &c. of Savannah v. Cleary, 67 Ga. 153; Sharp v. Parker, 108 Ga. 805 (34 S. E. 135); City of Augusta v. Lombard, 93 Ga. 284 (20 S. E. 312); Parrish v. Parrish, 21 Ga. App. 275 (94 S. E. 315); 40 Cyc. 659, 661, 663. Certainly, after the amendment to paragraph 14 had been allowed, the paragraph was not subject to the demurrer. Paragraph 14 was a very material portion of the petition, and the error in striking that paragraph rendered the further proceedings in the case nugatory.
Judgment reversed.