City of Albany v. Jackson

125 S.E. 478, 33 Ga. App. 30, 1924 Ga. App. LEXIS 687

• Court: Court of Appeals of Georgia
• Decided: November 12, 1924
• Docket: 15676
• Status: Published

Opinion

Luke, J.

1. Where two causes of action are set forth in a petition containing only one count, the petition is subject to a timely special demurrer for its duplicity. Gainesville & Dahlonega Ry. Co. v. Austin, 122 Ga. 823 (50 S. E. 883); Orr v. Cooledge, 117 Ga. 195 (3) (43 S. E. 527).

(a) In this ease the petition sets out two causes of action in a single count—one based on the law of nuisance, in that -it is alleged that the city is negligently maintaining a negligently constructed intake pipe connecting the lot of the petitioner with its storm-sewer, thereby causing large quantities of water, in times of rains, to flow and pond upon the petitioner’s property (Gabbett v. Atlanta, 137 Ga. 180, 73 S. E. 372, and cases cited; Maguire v. Cartersville, 70 Ga. 84; City of Atlanta v. Warnock, 91 Ga. 210, 18 S. E. 135, 23 L. R. A. 301, 44 Am. St. Rep. 17; Lewis v. Moultrie, 27 Ga. App. 757, 110 S. E. 625), the other count pleading the liability of the city, under the provision of the constitution (Civil Code of 1910, § 6388) that “private property shall not be taken, or damaged, for public .purposes, without just and adequate compensation being first paid,” in that the city so constructed its streets and sidewalks as to cause water to flow down to and upon the petitioner’s lot, independently of its. sewer system. See Sheppard v. Ga. Ry. & Power Co., 31 Ga. App. 653 (121 S. E. 868), and cases cited.

(b) There is no allegation in the petition that the alleged nuisance was either permanent or abatable. See City Council of Augusta v. Lombard, 101 Ga. 724 (28 S. E. 994).

'(c) In case of injury from a nuisance which iS' permanent, the one so injured is entitled to compensation for all damages, both past and prospective.

■ (d) Where .the nuisance is not of a permanent character, but may be abated at any time, and upon its abatement no further injitry will flow, an'notion will lie for the recovery only of such damages as may have been actually sustained. wi thin the period prescribed by the statute, of limitations. Langley v. Augusta, 118 Ga. 590 (9) (45. S. E. 486, 98 Am. St. Rep. 133).

Decided November 12, 1924. James Tift Mann, for plaintiff in error. Westbrook & Lanier, contra.

2. The measure of damages for 'an injury occasioned by a nuisance is the difference between the market value of the premises before the nuisance existed and the value after the nuisance was created. Head v. Towaliga Falls Power Co., 27 Ga. App. 143 (107 S. E. 558); Central Ga. Power Co. v. Stubbs, 141 Ga. 185 (80 S. E. 636).

3. The ante-litem demand for damages given to the city was sufficiently full. See Langley v. Augusta, 118 Ga. 590 (12) (45 S. E. 486, 98 Am. St. Rep. 133).

4. The petition in this case was not subject to general demurrer, but was subject to" the special demurrer based on the ground that the petition was duplicitous; it was therefore error to overrule the special demurrer, and for this reason the judgment is reversed.

Judgment reversed,.

Broyles, G. J., and Bloodworih, J., concur.