Adolph and Geneva Turk filed suit against the City of Rome, a municipal corporation, alleging that on April 28, 1972, the city’s workmen dug a ditch from abutting property onto their property; that in the process the workmen cut down a portion of plaintiffs hedge and destroyed a part of their wire fence running across the rear of the property, damaging them in a stated amount; that as a direct result of the negligent construction of the ditch, the plaintiffs sustained damage in a stated amount on May 3, 1972, when a thunderstorm caused surface water to gush down the ditch destroying their garden, damaging equipment and supplies stored in the carport, *887 and depositing mud and silt on their yard, and that they suffered further damage in the form of decrease in property value.
Defendant served interrogatories upon plaintiffs, and from plaintiffs’ answer it appears that no ditch existed prior to April 28,1972; that except for occasional and minor accumulation of water in the carport, no water problems were suffered prior to April 28; that the ditch dug on April 28 "begins 20 feet beyond plaintiffs’ property at the junction of two other ditches which in turn begin at culverts on Maplewood Drive. Said ditch extends 10 feet onto plaintiffs’ property”; that the "type” of ditch was "drainage and sewerage”; that the purpose of the ditch was to carry excess water onto plaintiffs’ property; and that the plaintiffs suffered water damage when it rained on subsequent occasions.
On this record the trial court granted summary judgment to the city, and plaintiffs appeal. Held:
1. "The construction, installation and maintenance of a sewer-drainage system (including that for surface water) is a governmental function of the city.
City Council of Augusta v. Cleveland,
2. "But the fact that in the instant case the plaintiff may have made a fruitless effort to lay a charge of negligence upon the city with regard to matters covered by its exemption from liability [Code § 69-301] ought not to defeat an otherwise well-stated cause of action... The allegations that negligence or errors were committed in. the exercise of the governmental function do not help the cause, but, not being germane, will be treated as surplusage, so as not to destroy it.
It is unnecessary for a plaintiff to name or classify the cause of action relied on,
but the test of the sufficiency of the petition as against a general demurrer is whether the defendant can admit all the allegations made and escape liability.”
City of Atlanta v. Due,
3. Even though the construction, installation and maintenance of a sewer-drainage system, including that for surface water, is a governmental function, a municipal corporation can nevertheless be held liable with respect to these activities on the theory of nuisance
(Reid v. City of Atlanta,
4. While the City has carried its burden of demonstrating that the activity in question is a governmental function, it has not, under the authorities cited in Division 3, carried its burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law with respect to the theories of nuisance and of taking or damaging for public purposes without just and adequate compensation being first paid. Consequently the grant of summary judgment as to the whole case must be reversed.
Judgment reversed.