Anneberg v. Kurtz

• Decision Date: 07 January 1944
• Docket Number: 14717.
• Citation: Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (Ga. 1944)
• Parties: ANNEBERG v. KURTZ.
• Court: Georgia Supreme Court

28 S.E.2d 769

197 Ga. 188

ANNEBERG v. KURTZ.

No. 14717.

Supreme Court of Georgia

January 7, 1944

Syllabus by the Court.

1.Where a person in the operation of a canning plant has, from June 1st to November 1st of each year for more than twenty years, emptied tomato peelings and refuse from the plant into a non-navigable stream, he has thereby acquired a prescriptive easement so to do.

2.A prescriptive easement, in accordance with facts stated in the preceding headnote, can be acquired, though the uses relied upon to constitute the easement may amount to a private nuisance.

Clara Anneberg filed a petition in Cobb superior court against E. E. Kurtz, seeking to enjoin the pollution and adulteration of the waters of a non-navigable stream flowing through the plaintiff's land, by the placing of tomato peelings, rotten tomatoes and other debris in the stream by the defendant, an upper riparian owner, in the operation of his canning plant located upon lands of the defendant, and through which the same stream of water flows.The plaintiff also sought to recover damages alleged to have been occasioned by the interference with her operation of a grist mill located upon her property, she alleging that refuse materials accumulate along the banks of the stream causing obnoxious odors and stenches, and interfering with the operation of the mill, and making the water in the stream unfit for domestic use.Plaintiff purchased the land in December when the canning factory was not in operation.

The defendant filed an answer, in which he admits that he has been emptying tomato peelings into the stream, but denies the harmful results alleged, and denies that the plaintiff is entitled to recover damages or to have an injunction granted.By amendment, the defendant alleges that he had been operating his canning plant upon the same tract of land where it is now located, and in the same manner, for a period of approximately thirty-three years, continuously during the canning season from June 1st to November 1st, each year.Such use of the stream has been actual, continuous, exclusive and uninterrupted, and in the right of the defendant uncomplained of by any predecessor in title of the plaintiff or by any other person, until the present suit was brought in 1942.The above use of the stream, and the lands upon which it flowed, did not originate in fraud, and he has thus acquired a prescriptive right to the use of the stream and the lands through which it flows.

To the amendment to defendant's answer, seeking to set up a prescriptive right to so use the stream, the plaintiff demurred upon the ground, among others, that the allegations do not show a continuity of use of the property for the requisite period of time to establish a prescriptive easement.The exception is to an order overruling the demurrer interposed by plaintiff, and refusing to grant a temporary injunction.

J. G. Roberts, of Marietta, for plaintiff in error.

Blair & Carmichael, Geo. D. Anderson, and Jno.T. Dorsey, all of Marietta, for defendant in error.

ATKINSON, Justice(after stating the foregoing facts).

1.The defendant, in an amendment to his answer, admits he has been operating a canning plant and dumping tomato peelings and refuse from the plant in the creek, but alleges a prescriptive easement so to do by reason of having done so from June 1st to November 1st of each year for the past thirty-three years; which presents two questions for decision, (1) could an easement by prescription ripen by reason of such seasonal use of this stream, (2) would these acts, though amounting to a private nuisance, ripen into a prescriptive easement?

Code, § 85-1301, declares: 'Running water, while on land, belongs to the owner of the land, but he has no right to divert it from the usual channel, nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner.'§ 105-1407 declares: 'The owner of land through which nonnavigable water courses may flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other riparian proprietors; and the diverting of the stream, wholly or in part, from the same, or the obstructing thereof so as to impede its course or cause it to overflow or injure his land, or any right appurtenant thereto, or the pollution thereof so as to lessen its value to him, shall be a trespass upon his property.'§ 85-401 declares: 'Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by the laws.'§ 85-402 declares: 'Possession to be the foundation of a prescription must be in the right of the possessor, and not of another; must not have originated in fraud; must be public, continuous, exclusive, uninterrupted, and peaceable, and be accompanied by a claim of right.Permissive possession cannot be the foundation of a prescription, until an adverse claim and actual notice to the other party.'§ 85-409 declares: 'An incorporeal right which may be lawfully granted, as a right of way or the right to throw water upon the land of another, may be acquired by prescription.'

'Adverse possession, must be made up of acts, which are open, visible, notorious and continuous.'Denham v. Holeman,26 Ga. 182(7), 71 Am.Dec. 198;Roe v. Doe,30 Ga. 971(2);Kirschner v. Western & A. R. Co., 67 Ga. 760(1);Graham v. Mitchell,78 Ga. 310;Clark v. White,120 Ga. 957, 48 S.E. 357;Bradley v. Shelton,189 Ga. 696(2), 7 S.E.2d 261.

In Hogan v. Cowart,182 Ga. 145(2), 184 S.E. 884, it was held that an owner of land may acquire by prescription an easement over the lands of another to use an open agricultural ditch extending from his lands through the lands of an adjoining proprietor for the purpose of drainage, whether or not the prescriber ever actually entered or occupied such adjacent lands.In Watkins v. Pepperton Cotton Mills,162 Ga. 371, 134 S.E. 69, where the owner of a public swimming pool located on a creek sought to enjoin a cotton mill from discharging the sewerage from its mill property and certain dwellings into the creek, it was held that having done so for more than twenty years, the cotton mill had acquired an easement.

But the point here presented goes beyond whether or not an easement to pollute a non-navigable stream can be acquired by prescription.It raises the question of whether or not the pollution of this stream during the canning season from June 1st to November 1st each year for more than twenty years is sufficiently continuous and uninterrupted to meet the requirements of title by prescription and adverse possession, or whether the failure to use it during the other months of the year would constitute such interruption as would break the continuity of its use.The precise question here presented has not been ruled upon by this court.

In Walker v. Steffes,139 Ga. 520(9), 77 S.E. 580, 581, it is said: 'The rule requiring continuity of possession is one of substance, and not of absolute mathematical continuity, provided there is no break, so as to make a severance of two possessions.'

In 17 Am.Jur. 972, § 60, it is said: '* * * The uninterrupted and continuous enjoyment of a right of way necessary to constitute adverse possession does not require the use thereof every day for the statutory period, but simply the exercise of the right more or less frequently according to the nature of the use.'See, also, 2 C.J. 100, § 134, note 7;2 C.J.S., Adverse Possession, p. 681, § 125.In Park v. Powers,2 Cal.2d 590, 42 P.2d 75(3), it was said: 'Where inclosed land suitable for grazing and pasturage is occupied each year during the entire season therefor, as from May until late October or November, possession is 'continuous' within adverse possession statute.'Adverse possession includes: the use of an irrigation ditch 'during the cropping season,'Hesperia Land & Water Co. v. Rogers, 83 Cal. 10, 23 P. 196(1), 17 Am.St.Rep. 209;'whenever needed * * * during the irrigation season,'Glantz v. Gabel,66 Mont. 134, 212 P. 858(3); use of a right of way 'whenever it is needed,'Myers v. Berven,166 Cal. 484, 137 P. 260(7); use of a fishery 'every year at the proper season,'...