27 Ga. App. 22 | Ga. Ct. App. | 1921
(After stating the foregoing facts.) Section 3634 of the Civil Code of 1910 makes it lawful for corporations or individuals, who own or control lands upon opposite sides of
The plaintiff contends, however, that her right of action was not so barred, because, she insists, the defendant was maintaining an abatable and continuing nuisance after notice to abate the same. While it is true that every .continuance of a nuisance not permanent and which can and should be abated is a fresh nuisance for which a new action will lie (Southern Railway Co. v. Morris, 119 Ga. 234, 46 S. E. 85), the facts of the instant case fail to bring it under that well-settled rule of law. In the first place, the dam in question was not, in contemplation of law, a nuisance The undisputed evidence shows that the construction of the dam was authorized by law, and that it was properly constructed and maintained. This being true, it cannot he adjudged a nuisance.
The cases cited and relied upon by counsel for the plaintiff in error are clearly distinguishable by their facts from the instant case.
The constitutional questions argued in the brief of 'counsel for the plaintiff in error cannot be considered, either by this court or the Supreme Court, as it does not appear from the record that
It follows from what has been said that the court did not err in holding that the plaintiff’s right of action was barred by the statute of limitations and in directing a verdict' for the defendant.
Judgment affirmed.