Raymond Boating & Fishing Club v. Brewer

145 S.E. 464, 38 Ga. App. 767, 1928 Ga. App. LEXIS 447

• Court: Court of Appeals of Georgia
• Decided: November 17, 1928
• Docket: 18748
• Status: Published

Opinion

Bell, J.

1. Upon a fair and reasonable construction of the petition in this case, it appears to be a suit to recover damages for the maintenance of a continuing, abatable nuisance, and in such a case the plaintiff may recover such consequential damages as he may have sustained within four years before the bringing of the action. Gabbett v. City of Atlanta, 137 Ga. 180 (73 S. E. 372); Athens Mfg. Co. v. Rucker, 80 Ga. 291 (4 S. E. 885).

2. The evidence did not demand the inference that the effect of the nuisance was such as to destroy entirely and permanently the fertility of the plaintiff’s land more than four years before the filing of the suit, proof of this fact being a matter of defense where it does not affirmatively appear from the plaintiff’s own evidence. Danielly v. Cheeves, 94 Ga. 263 (3) (21 S. E. 524); Ketron v. Sutton, 130 Ga. 539 (2) (61 S. E. 113); City of Macon v. Roy, 34 Ga. App. 603, 608 (130 S. E. 700).

3. Though perhaps weak, there was some evidence to authorize the inference that the alleged wrongful acts complained of were the proximate cause of the damages claimed. It can not be said that the verdict in the plaintiff’s favor was absolutely without evidence to support it. The court did not err in overruling the defendant’s motion for a new trial, based upon the general grounds only.

Decided November 17, 1928. Hall & Jones, for plaintiff in error. Post & Arnold, contra.

Judgment affirmed.

Jenkins, P. J., a/nd Stephens, J., eoneur.