51 Ga. 378 | Ga. | 1874
3. As to the measure of damages in cases of a continuing trespass, such, as overflowing one’s land, the authorities are almost uniform that it is limited to those which have occurred before action is commenced, and that subsequent damages flowing from a continuance of the trespass give a new right of action: Robinson vs. Bland, 2 Burr, 1077, 1086; Duncan vs. Markley, Harper’s Reports, 276; Blount vs. McCormick, 3 Denio, 283; Pierce vs. Woodward, 6 Pick., 206; 3 Black
The court, then, we think, was in error when it charged the juz-y that plaintiff “might recover a fair rental per annuni from the date of the overflow until the time of trial.” Loss or damage accruing after the action was brought could not be recovered in this suit.
It may be added that if the plaintiff knew at the time such outlay Avas made that his land was submerged so he could not cultivate it, he could not tax defendant for his loss resulting from the expenses paid out by him.
We think a new trial should be granted, and another investigation had.
Judgment reversed.