Rhines v. Commissioners of Chatham County

Court of Appeals of Georgia

Rhines v. Commissioners of Chatham County

179 S.E. 140, 50 Ga. App. 844, 1935 Ga. App. LEXIS 291

CourtCourt of Appeals of Georgia

DecidedFebruary 23, 1935

Docket24232

StatusPublished

Cited by2 cases

This text of 179 S.E. 140 (Rhines v. Commissioners of Chatham County) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rhines v. Commissioners of Chatham County, 179 S.E. 140, 50 Ga. App. 844, 1935 Ga. App. LEXIS 291 (Ga. Ct. App. 1935).

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Opinions

Stephens, J.

1. It is only where property has been appropriated or damaged by the erection and maintenance of a public improvement that the owner can recover upon the theory that his property has been appropriated or damaged- for public purposes. There can be no recovery upon this theory for damages flowing merely from an improper or defective or negligent construction or maintenance of the improvement, which results in an abatable continuing nuisance. Floyd County v. Fincher, 169 Ga. 460, 462 (150 S. E. 577) ; Howard v. County of Bibb, 127 Ga. 291 (56 S. E 418) ; Ellis v. Floyd County, 24 Ga. App. 717 (4), 718 (102 S. E. 181). .

[845]*845Decided February 23, 1935.

2. Where a county in constructing a roadway across a canal or stream of water reduces the size of the drain or passageway under the roadway, and thereby reduces the capacity of the canal to carry off under the roadway the waters flowing into the canal, and thus causes the waters coming into the canal as a result of heavy rains to back up on the surrounding territory and flow on adjoining land, and thereby damage the fertility of the soil and destroy growing crops, the damage thus sustained is not caused by the erection or maintenance by the county of the roadway over the canal, although there is under the roadway a restricted and insufficient passageway for the waters of the canal, but is caused solely from the negligent backing up of the water as a result of an improper or defective or negligent construction or maintenance of the improvement erected over the canal, and amounting to an abatable continuing nuisance for which a county is not liable.

3. In a suit by the landowner against the county to recover for the damage indicated, the petition as amended failed to set out a cause of action, and the court did not err in sustaining the general demurrer thereto. City Council of Augusta v. Lamar, 37 Ga. App. 418 (140 S. E. 763).

Judgment affirmed.

Jenkins, P. J., eonours. Sutton, J., dissents. Oliver .& Oliver, for plaintiff. John J. Bouhan, for defendants.

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Stephens, J.

1. It is only where property has been appropriated or damaged by the erection and maintenance of a public improvement that the owner can recover upon the theory that his property has been appropriated or damaged- for public purposes. There can be no recovery upon this theory for damages flowing merely from an improper or defective or negligent construction or maintenance of the improvement, which results in an abatable continuing nuisance. Floyd County v. Fincher, 169 Ga. 460, 462 (150 S. E. 577) ; Howard v. County of Bibb, 127 Ga. 291 (56 S. E 418) ; Ellis v. Floyd County, 24 Ga. App. 717 (4), 718 (102 S. E. 181). .

[845]*845Decided February 23, 1935.

2. Where a county in constructing a roadway across a canal or stream of water reduces the size of the drain or passageway under the roadway, and thereby reduces the capacity of the canal to carry off under the roadway the waters flowing into the canal, and thus causes the waters coming into the canal as a result of heavy rains to back up on the surrounding territory and flow on adjoining land, and thereby damage the fertility of the soil and destroy growing crops, the damage thus sustained is not caused by the erection or maintenance by the county of the roadway over the canal, although there is under the roadway a restricted and insufficient passageway for the waters of the canal, but is caused solely from the negligent backing up of the water as a result of an improper or defective or negligent construction or maintenance of the improvement erected over the canal, and amounting to an abatable continuing nuisance for which a county is not liable.

3. In a suit by the landowner against the county to recover for the damage indicated, the petition as amended failed to set out a cause of action, and the court did not err in sustaining the general demurrer thereto. City Council of Augusta v. Lamar, 37 Ga. App. 418 (140 S. E. 763).

Judgment affirmed.

Jenkins, P. J., eonours. Sutton, J., dissents. Oliver .& Oliver, for plaintiff. John J. Bouhan, for defendants.

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179 S.E. 140, 50 Ga. App. 844, 1935 Ga. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rhines-v-commissioners-of-chatham-county-gactapp-1935.

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