Brand v. Montega Corp.
| Decision Date | 17 September 1974 |
| Docket Number | No. 28784,28784 |
| Parties | Emris E. BRAND v. MONTEGA CORPORATION. |
| Court | Georgia Supreme Court |
Shoob, McLain & Jessee, C. James Jessee, Jr., James B. Ritchie, Atlanta, for appellant.
Neely, Freeman & Hawkins, William G. Tabb, III, Joe C. Freeman, Jr., Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Wall, Parker & Campbell, Alford Wall, Atlanta, for appellee.
Martin H. Peabody, John R. Martin, Atlanta, amicus curiae.
Syllabus Opinion by the Court
This is an appeal from a judgment based on a jury verdict in favor of defendant-appellee (Montega) in an action brought by plaintiff-appellant (Brand) in which he sought an injunction and damages for trespass to land. A former appearance of this case in this court is reported. See Montega Corporation v. Hazelrigs, 229 Ga. 126, 189 S.E.2d 421 (1972).
Brand's action against Montega contended that the latter had trespassed upon his property, had committed continuing trespasses that amounted to a continuing nuisance, that these alleged infringing acts should be stopped by injunction, and that these alleged infringing acts had caused damages that he sought to recover. The case was tried before a jury; the trial judge submitted questions to the jury, and the answers to the questions constituted the jury's verdict; the jury's answers to the questions were substantially as follows: (1) Montega had not trespassed upon Brand's property, (2) Montega had not committed a continuing trespass against Brand's property, (3) Montega's acts or omissions were not intentional and did not constitute such conduct that would display a want of care toward Brand, (4) Brand was not entitled to a permanent injunction, and (5) Brand was not entitled to recover any damages against Montega. Judgment was entered in favor of Montega, and Brand's motion for a new trial was overruled.
The record and transcript consist of over two thousand pages, and twenty-nine errors have been enumerated. We affirm the judgment below, and in this opinion we treat only those enumerated errors that we deem to be of significance.
1. Brand contends that the trial court committed error in withdrawing the issue of nuisance from the case and in refusing to charge the jury as to nuisance. The Complaint alleged acts of the defendant which constituted a continuing trespass and continuing nuisance. The complaint alleged: 'The intentional and artificial diversion of surface water onto plaintiff's property constitutes a continuing and abatable trespass and nuisance, thereby depriving plaintiff of the use and enjoyment of his property.'
As we read the allegations and the evidence in this case, the alleged acts of trespass and the alleged acts of nuisance were one and the same. In short, unless there was a continuing trespass in this case, there was no continuing nuisance. In a surface-water invasion case, the continuing invasions amount to a continuing trespass which is the equivalent of a continuing nuisance. The trial judge properly charged the jury that a surface-water invasion was a trespass and continuing invasions amounted to a continuing trespass, and the fact that he did not use the words 'continuing nuisance' in his instructions to the jury did not harm Brand or amount to harmful error. In Shaheen v. G & G Corp., 230 Ga. 646, 198 S.E.2d 853 (1973), this court held that the summary judgment evidence submitted...
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