Atkinson v. City of Atlanta

• Decision Date: 10 October 1888
• Citation: 7 S.E. 692,81 Ga. 625
• Parties: ATKINSON v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

7 S.E. 692

81 Ga. 625

ATKINSON v. CITY OF ATLANTA.

Supreme Court of Georgia

October 10, 1888

Error from city court of Atlanta; VAN EPPS, Judge.

Fulton Colville, for plaintiff in error.

J. B Goodwin and J. T. Pendleton, for defendant in error.

BLANDFORD J.

Mrs Atkinson, the plaintiff in error, brought her action against the city of Atlanta for damages, which she alleged she had sustained from the grading of the certain streets and the construction of certain sewers by the city, by reason of which a large body of water was emptied upon her lots, and her property thereby injured and damaged. By an amendment to the declaration she alleged that this was a continuing nuisance, and she proposed to recover such damages as had occurred within four years next before bringing of the suit. It was admitted that the work was done by the city more than four years next before the bringing of the suit. The declaration and the amendment were demurred to generally upon the ground that the same were not sufficient in law to authorize the plaintiff to recover. The court sustained the demurrer, and the plaintiff excepted. It was contended by the plaintiff in error that this was a nuisance ab origine, and a continuing nuisance, for which she was entitled to damages, for the reason that by the constitution of 1877 it is provided that private properly shall not be taken or damaged for public uses without just compensation. It was conceded by both sides, and properly, that, prior to the constitution of 1877, if anybody was damaged by the reason of building of sowers and grading of streets, unless it was done unskillfully, it was damnum absque injuria. The constitution of 1877, however, does not make that a nuisance which was not a nuisance before, it merely provides that where private property is damaged for public uses just compensation shall be had. In this case there was no nuisance. The city did what it had a right under the law to do. But if it damaged the party, the city was bound to make compensation in damages. When this work was done, and damage resulted therefrom to the plaintiff, she had a right of action against the city for damages, and not only for the damage which might have accrued prior to the bringing of the action, but for such as might accrue in the future. The whole damage could have been assessed in one action; such action taking the place of the statutory provision in cases where property is...