117 Ga. 893 | Ga. | 1903
The testimony tended to show that water, which collected in a trench dug by the railroad company on its right of way near the plaintiff’s house, became stagnant; that the odors arising therefrom impaired the desirability of his house as a residence, besides causing sickness to himself and family. The defendant introduced no testimony, but on cross-examination brought out the fact that many others in the .immediate neighborhood were likewise affected. It argued that the evidence made out a case of public nuisance, and procured from the court the following charge: “ If you find this to be a public nuisance and not a private nuisance, . . the plaintiff would not be entitled to recover.” A verdict for $2,000 having been rendered in favor of the plaintiff, the company insists that it is contrary to law and to this charge.
Sections 3858 and 3859 of the Civil Code are codifications of general principles, and provide that “ A public nuisance is one which damages all persons which come within the sphere of its operations, though it may vary in its effects on individuals. . . If, however, a public nuisance causes special damage to an individual, in which the public do not participate, such special damage gives a right of action.” If one should obstruct a highway, it would be a public nuisance to be abated as such; but if an individual in going along the road at night should drive over the obstruction and suffer injury as a result, he would be entitled to compensation for the damage done. If another should be specially damaged, he would likewise be entitled to recover. If a dozen individuals in turn were injured, they would each be authorized to sue the wrongdoer for the particular injury inflicted upon them; and for the reason that the defendant had not only created a public nuisance, but that he had likewise specially damaged particular individuals. It may have been that the nuisance here complained of could have been abated by the public; but if before such action was taken it could be clearly shown that plaintiff and his family had suffered, he would not lose his right to sue, though others in the neighborhood had likewise suffered. The private special injury was not merged and lost in the general public injury, of which only the public could complain. If the nuisance results in the impairment of a common right which every one may exercise, such as the use of a street, then the deprivation of that use hinders all persons alike from the enjoyment of the common right; and when it does not
There are several cases of high authority recognizing the right of a plaintiff to recover under circumstances substantially like those set out in the petition. Vice-Chancellor Bruce in Sampson v. Smith, 8 Sim. 272, held that, “ supposing the nuisance is public, it is private also, and the plaintiff does not apply for relief in respect of the public nuisance, where he sues for his special damages.” In Francis v. Schoelkopk, 53 N. Y. 152, the action was for damages occasioned by stenches arising from the defendant’s tanneries maintained in the
The allegations in the petition were sufficient to admit the evidence complained of, as to the character of filth drained or thrown into the trench. The evidence as to the depreciation in rental value was admissible as tending to. show a damage to the property, and the charge on the same subject was not error for any reason assigned. The fact that the pool could have been drained, and the accumulation of water prevented, had the City of Valdosta opened a ditch across the street, did not relieve the company of the liability for any injury done by it to the plaintiff. The defendant insists .that the verdict was contrary to law and the evidence, inasmuch as it appeared that much sickness of the same kind existed in other anu remote parts of the city, too distant to be affected by the stagnant
Judgment affirmed.