Evans, Judge.
Glen Gleaton sued the City of Atlanta for damages to realty. He alleged that injury resulted from a continuing trespass by defendant; that a combination sewer ran through his property which repeatedly overflowed; that his property was inundated with water and debris, backed up from the city’s sewer system; and that there was seepage from within the system; all of which caused erosion, decay and destruction to and undermining of his dwelling thereon.
Defendant answered, denied injuring plaintiff and contended the claim was barred by the statute of limitations.
At the close of plaintiffs evidence, defendant moved for a directed verdict, contending plaintiff had failed to make out a case of liability against the city and also that no proper measure of damages had been proven. After argument, the court withheld its ruling and required defendant to present its evidence.
The forms as to special verdicts were then agreed upon and the court instructed the jury to find: 1. structural damages to plaintiffs house resulted from the house being built on fill land; or 2. structural damage to plaintiffs house was caused by the overflow of water to plaintiff’s property; and then 3. no damage to the rugs and water heater was caused by the overflow of water in plaintiff’s house; or 4. the damage to the rugs and water heater was the result of water overflowing into the house.
The jury was instructed that if any damages were found there would be further proceedings before the jury.
A verdict in favor of plaintiff was returned, finding that the structural damage to plaintiffs house was caused by the overflow of water onto the plaintiffs property; and there was damage to the rugs and/or water [400] heater as the result of water overflowing into the house.
Defendant made a second motion for directed verdict and made a rather lengthy argument thereon, but his principal contentions seem to be: a. The house was damaged more than four years before the suit was filed, and said damages are barred by the statute of limitation, b. The measure of damages used by plaintiff, to wit, the "before and after” method is improper and illegal, and the proper and legal measure of damages would be the reasonable cost of repairs, as to which no evidence was introduced.
The jury was dismissed for the remainder of the day, and on convening of court on the following day, the court granted defendant’s motion for directed verdict. A written order was then entered as to said directed verdict for defendant, both as to the motion made at close of plaintiff’s evidence and the motion made at close of defendant’s evidence, and the complaint dismissed. Plaintiff appeals. Held:
1. A motion for directed verdict may be made at the close of plaintiffs evidence or at the close of all the evidence. Code Ann. § 81A-150 (§ 50, CPA; Ga. L. 1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248). But if the court denies the motion or for any reason it is not granted, the court is "deemed to have submitted the action to the jury subject to a later determination of the legal questions raised.” Under sub-paragraph (b) of Code Ann. § 81A-150, supra, a motion for judgment notwithstanding the verdict in accordance with the motion for directed verdict is then in order. Ga. Southern &c. R. Co. v. Blanchard, 121 Ga. App. 82 (4) (173 SE2d 103). Here no motion for directed verdict was made at the close of the case or at the close of all of the evidence; but after the jury had returned the aforementioned special verdicts, the motion for directed verdict was made and granted. When said motion was made, the jury had already decided each and every question in the case except as to the exact amount of damages to which plaintiff was entitled. Inasmuch as the trial court elected to submit the case to the jury for decision on certain vital questions, acquiesced in by defendant’s counsel, this constituted a waiver on defendant’s part of his right to move for a directed verdict [401] at the close of all the evidence, as is allowed and provided for in Code Ann. § 81A-150. There are only two places in point of time when a motion for directed verdict may be made, to wit, (1) at the close of plaintiffs evidence; and (2) at the close of all the evidence.
2. Defendant’s counsel contends plaintiff acquiesced in the method the court used in considering this case. The record is completely silent as to any such acquiescence, albeit there was a stipulation that the jury consider the special verdicts, in which no mention was made of a reservation by defendant of the right to move for directed verdict out of order, or at a time not allowed by law. The only law defendant has brought forward in support of his contention is Upshaw v. Cooper, 127 Ga. App. 690, 692 (194 SE2d 618), which is totally inapplicable here, and in no wise supports his contention. But regardless of defendant’s failure to move for a •directed verdict at a proper and legal time, an even stronger reason for deciding against defendant is that the evidence in this case created issues of fact which demanded that such issues of fact be submitted to the jury.
3. If a judgment excepted to is right for any reason, it will be affirmed by the appellate courts. See Stahl v. Russell, 206 Ga. 699 (2) (58 SE2d 135). Indeed, it has been held that a motion for directed verdict is not essential where the evidence demands the verdict, for if it demands it, the granting of the verdict by the court is valid despite the court’s failure to obey the procedural law in the Civil Practice Act. See Cox v. Zucker, 214 Ga. 44, 59 (102 SE2d 580); North Ga. Feed &c. Co. v. Ultra-Life Labs., 118 Ga. App. 149, 152 (162 SE2d 803). We, therefore, proceed immediately to the only remaining enumeration as to whether or not the court erred in directing the verdict for the defendant.
The motion for directed verdict "made on yesterday” was granted, as shown by the argument, because of an alleged failure to show a proper measure of damages and because of the contention that the damages were barred by the statute of limitations.
Defendant testified as to the value of his property originally; but he also testified that the value of the [402] dwelling in 1964, approximately four years before the suit was filed, was from $8,000 to $10,000. He qualified himself sufficiently to testify as to his opinion as to such value. He then testified that its value was absolutely nil after it became unfit for habitation, and he detailed the numerous complaints of the city as to it being unfit for habitation; and his subsequent permit to repair which was revoked by the city because the dwelling could not be rebuilt. This evidence alone created a jury question as to damage to the dwelling.
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Evans, Judge.
Glen Gleaton sued the City of Atlanta for damages to realty. He alleged that injury resulted from a continuing trespass by defendant; that a combination sewer ran through his property which repeatedly overflowed; that his property was inundated with water and debris, backed up from the city’s sewer system; and that there was seepage from within the system; all of which caused erosion, decay and destruction to and undermining of his dwelling thereon.
Defendant answered, denied injuring plaintiff and contended the claim was barred by the statute of limitations.
At the close of plaintiffs evidence, defendant moved for a directed verdict, contending plaintiff had failed to make out a case of liability against the city and also that no proper measure of damages had been proven. After argument, the court withheld its ruling and required defendant to present its evidence.
The forms as to special verdicts were then agreed upon and the court instructed the jury to find: 1. structural damages to plaintiffs house resulted from the house being built on fill land; or 2. structural damage to plaintiffs house was caused by the overflow of water to plaintiff’s property; and then 3. no damage to the rugs and water heater was caused by the overflow of water in plaintiff’s house; or 4. the damage to the rugs and water heater was the result of water overflowing into the house.
The jury was instructed that if any damages were found there would be further proceedings before the jury.
A verdict in favor of plaintiff was returned, finding that the structural damage to plaintiffs house was caused by the overflow of water onto the plaintiffs property; and there was damage to the rugs and/or water [400] heater as the result of water overflowing into the house.
Defendant made a second motion for directed verdict and made a rather lengthy argument thereon, but his principal contentions seem to be: a. The house was damaged more than four years before the suit was filed, and said damages are barred by the statute of limitation, b. The measure of damages used by plaintiff, to wit, the "before and after” method is improper and illegal, and the proper and legal measure of damages would be the reasonable cost of repairs, as to which no evidence was introduced.
The jury was dismissed for the remainder of the day, and on convening of court on the following day, the court granted defendant’s motion for directed verdict. A written order was then entered as to said directed verdict for defendant, both as to the motion made at close of plaintiff’s evidence and the motion made at close of defendant’s evidence, and the complaint dismissed. Plaintiff appeals. Held:
1. A motion for directed verdict may be made at the close of plaintiffs evidence or at the close of all the evidence. Code Ann. § 81A-150 (§ 50, CPA; Ga. L. 1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248). But if the court denies the motion or for any reason it is not granted, the court is "deemed to have submitted the action to the jury subject to a later determination of the legal questions raised.” Under sub-paragraph (b) of Code Ann. § 81A-150, supra, a motion for judgment notwithstanding the verdict in accordance with the motion for directed verdict is then in order. Ga. Southern &c. R. Co. v. Blanchard, 121 Ga. App. 82 (4) (173 SE2d 103). Here no motion for directed verdict was made at the close of the case or at the close of all of the evidence; but after the jury had returned the aforementioned special verdicts, the motion for directed verdict was made and granted. When said motion was made, the jury had already decided each and every question in the case except as to the exact amount of damages to which plaintiff was entitled. Inasmuch as the trial court elected to submit the case to the jury for decision on certain vital questions, acquiesced in by defendant’s counsel, this constituted a waiver on defendant’s part of his right to move for a directed verdict [401] at the close of all the evidence, as is allowed and provided for in Code Ann. § 81A-150. There are only two places in point of time when a motion for directed verdict may be made, to wit, (1) at the close of plaintiffs evidence; and (2) at the close of all the evidence.
2. Defendant’s counsel contends plaintiff acquiesced in the method the court used in considering this case. The record is completely silent as to any such acquiescence, albeit there was a stipulation that the jury consider the special verdicts, in which no mention was made of a reservation by defendant of the right to move for directed verdict out of order, or at a time not allowed by law. The only law defendant has brought forward in support of his contention is Upshaw v. Cooper, 127 Ga. App. 690, 692 (194 SE2d 618), which is totally inapplicable here, and in no wise supports his contention. But regardless of defendant’s failure to move for a •directed verdict at a proper and legal time, an even stronger reason for deciding against defendant is that the evidence in this case created issues of fact which demanded that such issues of fact be submitted to the jury.
3. If a judgment excepted to is right for any reason, it will be affirmed by the appellate courts. See Stahl v. Russell, 206 Ga. 699 (2) (58 SE2d 135). Indeed, it has been held that a motion for directed verdict is not essential where the evidence demands the verdict, for if it demands it, the granting of the verdict by the court is valid despite the court’s failure to obey the procedural law in the Civil Practice Act. See Cox v. Zucker, 214 Ga. 44, 59 (102 SE2d 580); North Ga. Feed &c. Co. v. Ultra-Life Labs., 118 Ga. App. 149, 152 (162 SE2d 803). We, therefore, proceed immediately to the only remaining enumeration as to whether or not the court erred in directing the verdict for the defendant.
The motion for directed verdict "made on yesterday” was granted, as shown by the argument, because of an alleged failure to show a proper measure of damages and because of the contention that the damages were barred by the statute of limitations.
Defendant testified as to the value of his property originally; but he also testified that the value of the [402] dwelling in 1964, approximately four years before the suit was filed, was from $8,000 to $10,000. He qualified himself sufficiently to testify as to his opinion as to such value. He then testified that its value was absolutely nil after it became unfit for habitation, and he detailed the numerous complaints of the city as to it being unfit for habitation; and his subsequent permit to repair which was revoked by the city because the dwelling could not be rebuilt. This evidence alone created a jury question as to damage to the dwelling.
As to the statute of limitation, the witness’ testimony as to when the water began to cause damage to his house was somewhat vague and showed that even before the four-year period, the water was causing damage to his house. But he testified that he was making repairs and improvements during these four years and that the property increased in value $6,000 in 1950, to a value of $8,000 to $10,000 in 1964, four years before suit was filed. Where a trespass is continuing in nature, such as is the one here, a new cause of action arises daily, and suit may be maintained for all damages accruing during the four years immediately preceding the filing of suit. Goble v. L. & N. R. Co., 187 Ga. 243 (3) (200 SE 259); Savannah Electric &c Co. v. Horton, 44 Ga. App. 578 (4) (162 SE 299); Scott v. Dudley, 214 Ga. 565 (2) (105 SE2d 752). The contention that the damages were barred by the statute of limitation is not well taken. Where the drainage of surface water is inadequate to carry off water accumulating in the streets of a municipality and continuously overflowing upon adjoining premises, its maintenance thereafter by the city constitutes a nuisance, and the city may be liable for resulting damage to adjacent property owners. Bass Canning Co. v. MacDougald Const. Co., 174 Ga. 222 (162 SE 687); City of Macon v. Macon Paper Co., 35 Ga. App. 120 (132 SE 136); City of Brunswick v. Tucker, 103 Ga. 233 (29 SE 701, 68 ASR 92); Langley v. City Council of Augusta, 118 Ga. 590 (45 SE 486, 98 ASR 133). Not only did the sewer fail to carry off the surface water, but there was testimony that sewer water backed up out of the sewer and trespassed upon plaintiff’s property. There was also testimony that the city was notified from time to time over the years and [403] failed to abate the nuisance. The evidence shows a continuing trespass on plaintiff's land began more than four years before suit was filed; but there was sufficient testimony as to value during the four years immediately prior to suit for consideration by the jury. Code § 3-1001.
Argued January 10, 1974
Decided March 14, 1974
Rehearing denied March 28, 1974
Katz, Paller & Land, Fred L. Cavalli, for appellant.
Henry L. Bowden, Charles M. Lokey, for appellee.
For the reasons stated above, the court erred in directing the verdict against the plaintiff.
Judgment reversed.
Bell, C. J., Quillian and Clark, JJ., concur. Pannell, P. J., Deen and Stolz, JJ., concur in the judgment. Hall P. J., and Eberhardt, P.J., dissent.