Bass Canning Co. v. MacDougald Const. Co.

• Decision Date: 14 January 1932
• Docket Number: 8299,8300.
• Citation: 162 S.E. 687,174 Ga. 222
• Parties: BASS CANNING CO. v. MacDOUGALD CONST. CO. et al. SAME v. MAYOR, ETC., OF MILLEDGEVILLE et al.
• Court: Georgia Supreme Court

162 S.E. 687

174 Ga. 222

BASS CANNING CO. v. MacDOUGALD CONST. CO. et al.

SAME v. MAYOR, ETC., OF MILLEDGEVILLE et al.

Nos. 8299, 8300.

Supreme Court of Georgia

January 14, 1932

Judgment Adhered to After Rehearing February 27, 1932.

Syllabus by the Court.

City having authority to grade and drain streets held nevertheless liable for damage from discharge of surface water upon premises constituting nuisance.

Independent contractor whose execution of city's plans for paving and drainage resulted in discharge of surface waters causing nuisance held liable as joint tort-feasor.

1.A general grant of power to grade streets and to establish in connection therewith a system of drainage does not carry with it any right on the part of the municipality to create and maintain a nuisance by causing surface water to be discharged upon the premises of a private citizen; and he may, when such a thing has been done, maintain against the city an action to recover the damages sustained in consequence thereof.

2.Under the facts alleged, the other defendant, the MacDougald Construction Company, is jointly liable with the city as a joint tort-feasor.

Certiorari to Court of Appeals.

Suit by the Bass Canning Company against the MacDougald Construction Company, the Mayor, etc., of the City of Milledgeville, and others.Judgment for plaintiff was reversed by the Court of Appeals(42 Ga.App. 533, 156 S.E. 628), on separate error proceedings brought by defendants, and plaintiff brings certiorari.

Judgment of Court of Appeals reversed.

BECK P.J., and GILBERT, J., dissenting.

Frank W. Bell, of Milledgeville, and Sam H. Wiley, of Sparta, for plaintiff in error.

Sibley & Sibley, of Milledgeville, Spalding, MacDougald & Sibley, of Atlanta, and Hines & Carpenter, of Milledgeville, for defendants in error.

BECK P.J.

This suit was against the city of Milledgeville and a construction company, for damage to personal property of the plaintiff in its warehouse, resulting from the inundation of the ground floor of the building by surface water from the streets.It was alleged: That between the street and the sidewalk there had been a surface-drain ditch, which drained into a perpendicular sewer; that in 1928 the city contracted with the construction company to pave the street in question, and construct necessary storm sewers, catch-basins, and manholes in accordance with plans furnished by the city; that the construction company did such construction work in accordance with the plans adopted by the city, and in so doing built up the sewer into which the surface water from the street had theretofore drained so as to raise the mouth of the sewer about four feet, converting the open perpendicular drain sewer into a closed manhole, and leaving no opening into which the surface water accumulating on the street could drain.It was alleged that plaintiff protested to the construction company's foreman and the city's engineer as to the manner of constructing the sewer, and they promised to correct the defect so as to make provision for draining the surface water, but failed to do so, and that thereafter a hard rain caused surface water to overflow the sidewalk and run into plaintiff's building, resulting in the damages sought to be recovered.The petition was in three counts.Count 1 alleged that the diversion of the surface water causing it to pond in the storage room of the plaintiff by closing the drain sewer constituted a nuisance; the second count alleged that the defendants were negligent in raising the height of the perpendicular sewer into which the surface water had theretofore drained, without providing openings in the added portion sufficient to allow the water accumulating in the drain ditch to escape through the sewer; the third count sought a recovery on the theory that the acts of the defendants amounted to a taking and damaging of private property for public purposes, without just and adequate compensation.The court sustained the demurrer to the third count, and overruled separate demurrers interposed by the city and the construction to the first and second counts, and the defendants except, in separate bills of exceptions, to the rulings on the first and second counts.

The foregoing statement is taken from the report of the decision by the Court of Appeals.But we cannot concur in the judgment of the Court of Appeals reversing the judgment of the court below, overruling the demurrers to the first and second counts of the petition.Under previous decisions by this court, it seems to us that the trial court correctly held that the petition of the plaintiffs set forth a cause of action.There are several decisions which have been rendered by this court, under which the trial judge was correct in his holding as to the first and second counts.In the case of Reid v. Atlanta,73 Ga. 523, the statement of facts was as follows: "On May 16, 1882, Mary A. Reid brought case against the city of Atlanta.The declaration alleged that the city had negligently kept, worked and graded Hunter street so as to turn water upon the lot where she resided causing it to wash, and producing stagnant and filthy puddles, endangering health, etc.By amendment, it was alleged that, in 1870, the city changed the sewer on Hunter street from its original and natural position to a new situation so negligently as to discharge water where it would flow directly across plaintiff's lot; that the original work was unskillful and wrong; and that it had been a continuing nuisance and had been greatly increased by changes in the grade of the street within four years prior to the bringing of the suit; also that, within that time, human excrement had begun to be discharged upon plaintiff's lot from the sewer.Damages for the four preceding years were claimed; also for the permanent injury of the lot."And in that casethis court held: "Every continuance of a nuisance is a renewal of wrong, and therefore actionable until abated.3 Blackstone, 220;[Bonner v. Welborn], 7 Ga 327;[Phinizy v. City Council of Augusta], 47 Ga. 266, 267.Surely it is a nuisance to keep up a sewer which, when it rains, throws upon one's lot, and near the house where she resides, too, excrement disagreeable in smell and hurtful to health.We are constrained, therefore, to rule that the court erred in dismissing the plaintiff's action."

In another decision rendered subsequently, this court adhered to the ruling in the Reid Case, holding: "It is contended that, as the city had the right to establish a system of 'grading and drainage' by its charter, it is not liable for damages done to private citizens if the same was done skillfully.With this view we do not concur.The grading and drainage must be done so that the same will not prove a nuisance to the citizens, impairing the health of families and producing noxious scents, thereby rendering the enjoyment of their property impossible.If it be so done, the city will be liable for damages."Smith v. Atlanta,75 Ga. 110.It was further said, in the Smith Case: "This sewer was and is under the control of the city; if it be a nuisance and the city hasnot abated it, no one else could not having abated it, the city may be said to have...