29 S.E.2d 88 | Ga. Ct. App. | 1944
1. The petition set out a cause of action and the court did not err in overruling the general demurrer.
2, 3. All damages sought by the petition were claimed by reason of injury alleged to have been sustained as the result of the creation and maintenance of a public nuisance by the defendant, and the court did not err in overruling the special demurrer, that there was a misjoinder of causes of action. The other ground of special demurrer is without merit.
4. Where it is uncontroverted that the owner of a tract of land lying outside the corporate limits of a municipality had said tract subdivided into lots, blocks, and streets, and had made and recorded a plat showing this subdivision, and had sold lots therein referring in the deeds to the recorded plat, and there was evidence from which the jury was authorized to find that the county authorities had worked and maintained one of the streets shown in said subdivision, and that such street was used by the public until it was obstructed by a sand pit created by the defendant, this was sufficient evidence to authorize a finding by the jury that the street was a public street and its obstruction constituted a public nuisance; and where there was evidence that in the operation of the sand pit, the defendant had obstructed an alley abutting the plaintiff's property by removing the dirt therefrom to a depth of 75 feet so that the plaintiff's right of ingress to and egress from her lot over the alley had been destroyed, and that said excavation had deprived the plaintiff's property of lateral support, and was dangerous and hazardous, the court did not err in overruling the general grounds of the defendant's motion for a new trial.
5-8. All the surrounding circumstances attending the manner in which the defendant operated and maintained the alleged public nuisance, was relevant under the issues made by the pleadings in which the plaintiff sought to recover actual and exemplary damages of the defendant. *546 9-11. While the operation and maintenance of a sand pit is not a nuisance per se, it may become so if operated or maintained in an unreasonable manner so as unnecessarily to produce actual, tangible, and substantial injury to neighboring property by interfering with the use and enjoyment of such property by persons of ordinary sensibilities. The exceptions to the charge of the court in this respect show no error.
12. The verdict was supported by evidence, no error of law appears, and the court did not err in overruling the motion for a new trial.
The defendant demurred to the petition on the ground that it set out no cause of action: that it contained no allegation showing wherein the defendant had damaged the plaintiff: that there was a misjoinder of causes of action, in that the plaintiff sought to recover in the same action damages allegedly inflicted to her property, and damages allegedly sustained by reason of the defendant having obstructed an easement; and especially to paragraph 7, which alleged in substance that the defendant made a tremendous excavation in the ground near the plaintiff's lot, and destroyed the alley in the rear of the lot by removing the dirt therefrom to a depth of approximately 75 feet, which had caused a precipitate slope or precipice that marked the approximate rear line of her lot and made impossible any ingress to or egress from her lot at any point along the rear line of same and prevented the use of the rear portion of her lot, and was hazardous and dangerous, on the ground that the allegations were immaterial, irrelevant, and prejudicial, in that there was no allegation that the defendant did not own said property, and have the right to use it as he pleased. The court overruled the demurrer as to each ground thereof, and the defendant excepted pendente lite to this judgment, and assigned error thereon.
The defendant answered, and denied that he had destroyed the alley and street and admitted he had removed sand from property adjoining the alley; he alleged that the alley had never been opened as a traveled way, and that he had not done anything which would prevent the alley from being used if persons legally entitled to use it should desire to open it.
The plaintiff amended her petition and alleged in substance that the defendant had conducted said excavation without reference to the plaintiff's rights and with such entire want of care for her rights as to evidence a conscious indifference to the consequences of his operations, and that by reason thereof she was entitled to recover the sum of $500 as exemplary damages, which sum was included in the $1500 for which recovery was sought in the original petition.
1. The defendant contended that the general demurrer should *548
have been sustained on the ground that the petition did not set out a cause of action, for that it did not show that the operations and excavation by the defendant constituted a public nuisance, or that the plaintiff had been specially damaged thereby. The petition alleged that the plaintiff held title to a lot abutting a 20-foot alley over which she held the right of passage for ingress to and egress from her lot; that the defendant destroyed the alley by making an excavation to a depth of approximately 75 feet; that the plaintiff purchased her lot in a subdivision which contained, among other streets, Ella Street, and that she had the right of passage over this street, but that the defendant had destroyed this street by the excavation; that at the rear of her lot the excavation was approximately 75 feet deep and this prevented her from using the rear portion of her lot and that it was hazardous and dangerous. As against the general demurrer, the allegations were sufficient to set out a cause of action. The petition alleged that the alley was laid off as a public alley. "One whose means of egress from and ingress to his property abutting on a public highway is illegally and unnecessarily interfered with by the placing of obstructions in and the plowing up of . . such way lying in the highway by another, not the public authority charged with the duty of maintaining and keeping in repair such highway, suffers a special injury and may maintain an action for damages therefor against the wrong-doer, his injury being different from that suffered by the public at large, although such obstruction and interference may also constitute a public nuisance. . . Punitive damages may be recovered where the circumstances are such as to justify the allowance thereof. . . The fact that the landowner may have a more circuitous route does not prevent the recovery of damages."Barham v. Grant,
2. The defendant demurred specially to the petition on the ground that there was a misjoinder of causes of action, in that the plaintiff sought to recover damages for injuries to her property and also damages for injuries sustained by her by reason of the defendant having obstructed an easement. "All claims arising ex contract between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined." Code, § 3-113. The plaintiff's action was in tort, and all damages claimed were sought by reason of the alleged tortuous acts of the defendant in creating and maintaining an excavation in the ground which it was alleged constituted a public nuisance and destroyed the use of street and an alley and otherwise injured the plaintiff's property. The court did not err in overruling the special demurrer to the petition.
3. The contention that the court erred in overruling the special demurrer to paragraph 7 of the petition is without merit. "A nuisance is anything that works hurt, inconvenience or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance." Code, § 72-101. "Generally, a public nuisance shall cause special damage to an individual, in which the public do not participate, such special damage shall give a right of action." Code, § 72-103. Whether or not the act of the defendant constituted a public nuisance, as contended by the plaintiff and denied by the defendant, and whether or not the defendant had by the excavation destroyed the alley abutting the plaintiff's property, as contended by the plaintiff, or had made the excavation on property adjacent to the alley, as contended by the defendant, were issues for the jury to determine.
4. The defendant contends that the court erred in overruling the general grounds of the motion for a new trial because the evidence was insufficient to show that the defendant's activities constituted a public nuisance. There was evidence to the effect that in 1928, Jake Heard, the owner of the land, had it subdivided into streets, alleys, blocks, and lots, and had a plat thereof made and *550
recorded showing this subdivision. This plat showed, among other streets and alleys, Ella Street extending from Houston Avenue on the east to Antioch Road on the west, and bounding block F on the south, and a 20-foot alley extending through this block and forming the southern boundary of lots numbers 1 through 19 of the block. In 1928, Heard conveyed lots numbers 1 through 16 of block F to H. H. Sapp, and in the deed conveying these lots described them according to the recorded plat and referred to them as abutting on a 20-foot alley on the south. By a succession of grantors, the plaintiff acquired title to lot number 4 of block F, and her deed to said lot referred to the recorded plat. After the plaintiff acquired title to her lot, the defendant leased certain lands from Heard for the purpose of mining sand therefrom. In operating his sand pit the defendant excavated to a depth of 75 feet in places, and this excavation crossed Ella Street and the center line of the 20-foot alley, so that where this street and alley were located, as shown by the recorded plat, was a lake of mud, sand, and water. Any encroachment upon a public road by a private individual which interferes with the full use of such road by the traveling public is a public nuisance. Southeastern Pipe-Line Co. v. Garrett,
5. In special grounds 1 and 6 of the motion, the defendant contends that the court erred in allowing the plaintiff and the witness, H. H. Sapp, to testify that the defendant never gave them notice of his intention to excavate any portion of the alley in the rear of their lots, over the objections of the defendant that such testimony was irrelevant and immaterial because the defendant was under no legal obligation to give such notice. The record discloses that the witness, H. H. Sapp, had a similar action against the defendant, and that by agreement of all parties the two cases were tried together. The evidence is uncontroverted that the deed under which the plaintiff held title to her lot referred to the recorded plat and that her deed and the deed from Jake Heard were recorded in the clerk's office of the superior court of Bibb County. The defendant testified that he did not know where the boundary lines were between the properties of the plaintiff and the property upon which he was operating a sand pit, out that neither Miss Reynolds nor the witness, H. H. Sapp, had ever said anything to him about removing sand from the pit. The petition alleged that the defendant had removed the soil from the alley to a depth of 75 feet in places, and that the excavation came up to the boundary line of the plaintiff's property. Even if the defendant had acquired the right to remove soil from the alley, before making the excavation up to the boundary line of the plaintiff's property, he was charged with a duty of giving her reasonable notice of his intention to so do. Code, § *554
85-1203. Under the facts of the present case, the plaintiff under her deed acquired the right of passage over the alley for ingress to and egress from her property, and also acquired title to the soil embraced in the half of the alley adjoining her lot.Tietjen v. Meldrim, supra. She alleged that the defendant conducted his operations at the sand pit without reference to her rights, and so as to evidence a conscious indifference to the consequences of his acts, and she sought to recover punitive damages as well as actual damages from the defendant. "Where there has been a breach of duty giving rise to a cause of action and the injured party claims punitive damages, all the surrounding circumstances accompanying the breach of duty, may be given in evidence to the jury." L. N. Railroad Co. v.Forrest,
6. In special ground 2, the defendant contends that the court erred in permitting the witness, W. B. Leverette, to testify that he had complained to the defendant about the excavation, over the objections of the defendant that such evidence was irrelevant and immaterial; and that the court erred in permitting this witness to testify that he had presented a petition of the property owners to the defendant, over the objections of the defendant that where he conducted his sand pit was private property, and under no construction of the evidence could the sand pit be classed as a public nuisance. A business which is itself lawful may become a nuisance because of the locality in which it is operated or because it is conducted in an improper manner.Warren Company v. Dickson,
7. In special ground 3, the defendant contends that the court erred in allowing the witness, W. B. Leverette, to testify that the excavation was not fenced or provided with guard rails, and that it was not lighted at night; that the bottom of the excavation was something between mud and quicksand in places, and mud and water in other places; that the water at the rear of the plaintiff's lot was 15 or 20 feet deep; that after the defendant removed the sand, he allowed the overburden to remain and children went there; that one child lost its life, and the child of the witness almost did the same; and that the excavation was dangerous; over the objections of the defendant that the evidence was irrelevant and immaterial, and injected issues in the case which were not authorized, and upon the further ground that the witness was testifying in part to conditions near Henry Street which was a separate operation from the one at the rear of the plaintiff's property. The evidence was relevant to show the circumstances and conditions surrounding the operations of the defendant. The plaintiff in her petition alleged that the excavation was dangerous, and this evidence was relevant to show the condition which existed at the rear of the plaintiff's property where the alley had been located, and the condition which existed at the location of Ella Street, there being evidence that the excavation consisted of one large hole. The evidence was not inadmissible for any reason assigned, and the court did not err in overruling special ground 3 of the motion for a new trial.
8. In special grounds 4, 5, and 7 of the motion, the defendant contends that the court erred in permitting the witnesses, W. B. Leverette, W. E. Defore, and H. H. Sapp, to testify as to the depth of the excavation, and as to the condition existing at the bottom of the excavation being dangerous because it looked like firm earth and would suddenly give away and allow anyone walking on it to sink down in it, over the objection of the defendant that the evidence was irrelevant and immaterial. Whether or not the excavation was hazardous and dangerous as alleged by the plaintiff was one of *556 the issues in the case. The evidence was relevant and material as to this issue, and was not inadmissible for any reason assigned, and the court did not err in overruling special grounds 4, 5, and 7 of the motion for a new trial.
9. It is contended in special grounds 8 and 9 that the court erred in charging the jury, "Now, gentlemen, as I stated in the beginning, these petitions are brought for alleged special damages because of an alleged public nuisance," and, "Now, in order for the plaintiffs to recover in these cases, the plaintiffs must show by a preponderance of the evidence, the existence of the nuisance complained of, that is, the sand pit to be a public nuisance, and that they suffered injury, and that the injury complained of was caused by the alleged nuisance," upon the ground that such charges were not authorized by the evidence for the reason that there was no evidence that the sand pit was a public nuisance. The plaintiff alleged that the excavation was a public nuisance, and that she was injured thereby. The defendant denied these allegations. There was evidence to support the allegations of the petition, and the court did not err in submitting the issue to a jury for its determination.
10. In special grounds 10, 11, and 12, the defendant contends that the court erred in charging the jury: "I charge you that everyone has the right to use his property as he sees fit, and I charge you the proper operation of a sand pit is not a nuisance in and of itself. As I said, everyone has the right to use his property as he sees fit, provided that in so doing he does not invade the rights of others unreasonably, judged by the ordinary standards of life and according to the notions of reasonable men;" and: "Now I charge you the privilege of use incident to the rights of property must not be exercised in an unreasonable manner, so as to inflict injury upon another unnecessarily. To constitute a nuisance, the use made must be such as to produce actual, tangible and substantial injury to neighboring property itself, or such as to interfere sensibly with its use and enjoyment by persons of ordinary sensibilities;" and, "Therefore, if you should believe that the use of the property by the defendant complained of is unreasonable and such as to produce actual, tangible and substantial injury to neighboring property itself, or to interfere sensibly with its use and enjoyment by persons of ordinary sensibilities, the use would constitute a nuisance;" upon *557
the grounds that there was no evidence that the sand pit was operated in an illegal or unreasonable manner or that the sand pit, or its operations had injured any person who had a right to complain. It is not contended that the charges do not contain accurate principles of law but the contention is that the charges were not authorized by the evidence. There is no merit in this contention. In this connection see the Code, §§ 72-101, 72-103, 72-104; Holman v. Athens Empire Laundry Co.,
11. In special ground 13, the defendant contends that the court erred in charging the jury: "The plaintiff seeks to recover from the defendant for alleged damages alleged as permanent injuries to her property known as lot number 4 . . for an alleged public nuisance, for allegedly depriving plaintiff of her right of passage over Ella Street, right of ingress and egress to lots over the 20-foot alley in the rear of the lots, loss of lateral support," upon the grounds that there was no evidence to support it, and contends that the evidence showed that neither the maintenance of the sand pit nor any other act of the defendant constituted a public nuisance, and that it was error for the court to charge that the plaintiff was suing for such damage in the absence of any evidence to support such a claim. There is no merit in this ground of the motion for a new trial.
12. The evidence authorized the verdict, no error of law appears, and the court did not err in overruling the motion for a new trial.
Judgment affirmed. Felton and Parker, JJ., concur.