Mayor of Gainesville v. Gaines

96 S.E. 328, 22 Ga. App. 490, 1918 Ga. App. LEXIS 567

• Court: Court of Appeals of Georgia
• Decided: July 10, 1918
• Docket: 9409
• Status: Published

Opinion

Broyles, P. J.

1. Under .the facts disclosed by the record the cause of action was not' barred by the statute of limitations.

2. Where a nuisance is not of a permanent nature, but one that may be abated at any time, and upon its abatement no further injury would result, the person whose land is injured by the nuisance is not entitled to recover damages for both past and prospective injuries to'the land, but can recover damages for only such injuries as were actually sustained, within the period prescribed by the statute of limitations, before the suit was brought, Langley v. Augusta, 118 Ga. 590 (45 S. E. 486, 98 Am. St. R. 133).

3. In this case the suit was for permanent injuries to land, alleged, to have been caused by a nuisance of a permanent nature, and damages for both past and prospective injuries were sought. -The defendant, the Mayor and Council of the City of Gainesville, introduced no. evidence. The. undisputed evidence introduced by the plaintiff showed that the nuisance was one that could be abated at any time, and that upon its abatement no further injury would result to his land. Under these facts, and the ruling stated above, the verdict, finding damages for both past and prospective injuries,to the land, was contrary to law and the evidence, and the court erred in overruling the motion for a new trial.'

Decided July 10, 1918.

Action-for damages; from city court of Hall county—Judge Wheeler. November 8, 1917.

C. N. Davie, W. B. Sloan, for plaintiff in error. E. H. Perry, W. A, Charters, W. N. Oliver, contra.

4. It is unnecessary to consider the assignments of error.other than those dealt with above.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.