Brown v. The City Of Atlanta

• Decision Date: 30 September 1880
• Citation: 66 Ga. 71
• Parties: Brown. vs. The City of Atlanta.
• Court: Georgia Supreme Court

66 Ga. 71

Brown. vs. The City of Atlanta.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1880.

Practice in the Supreme Court. Damages. Negligence. Municipal corporations. Charge of Court. Onus probandi. Before Judge HlLLYER. Fulton Superior Court. March Term, 1880.

Brown brought case against the city of Atlanta for damages alleged to have been done to his land, lying on the course of the same stream as the city water works, and below the reservoir, by overflowing the same. The principal cause of damage alleged was the letting off of water from the reservoir through a waste pipe. On the trial the jury found for the plaintiff $112.00. Being dissatisfied with this verdict, he moved for a new trial, which was refused, and he excepted. Among the grounds of error were the following charges of the court:

1. " The court is responsible for the law. Your oathand your duty require that you take the law implicitly as the court delivers it. To aid your memory in this respect, the court reminds you that the charge is delivered here in public, in the hearing of the parties and their counsel; notes may be taken of it, and if the court errs in the law it is easy to reach it and to have a rehearing upon it, and to have it corrected, but if the jury undertake to usurp the functions of the court, and differ with the court as touching the law, as you deliberate in private, and it is unknown sometimes what reasons guide you to your conclusions, it is more differcult to reach, ascertain or correct any error into which you might fall. Therefore, the law imposes upon the court the responsibility of determining the law of the case. Your province is with the facts. You are the exclusive judges of the testimony, and it is your duty to find the facts in the testimony and from the testimony."

2. " The burden of proof is on the plaintiff to show that the city was negligent, and to show that he was insured, and to show the extent of such injury, and to show that the same was caused by the defendant's negligence, or that of its agents having charge of the works in question. The evidence must preponderate in favor of Mr. Brown to make out his cause of action."

3. "The city had in law a right to construct the waterworks and to dam up and obstruct the water so far as proper and necessary therefor, and it was the plaintiff's right to have his land exempt from any more injuries and negligent overflow of his land by water than would have gone over it by the laws of nature. It is not his right to have it come in the same undisturbed volume as it would have come by nature, or that high water from

rains should occur on his land at the same exact time it would have come, but his right would be that such high water should not be more injurious. If there was injury caused to plaintiff's land by unnecessarily or negligently burning water out of the dam which injury would nothave happened at all but for such wrongful turning out of water, he could recover; but if the same freshet or a more injurious one would have reached his land anyhow, though at an earlier date, he could not recover. There could be no recovery for injury done, if any, by water running out over the storm channels any more than would be by water passing any ordinary mill dam or factory dam."

4. " The city or its agents would have the right to let off the water for all proper purposes of the works, if done in such quantities as would keep within and not overflow the adjacent lands below, when the stream was in its ordinary condition—its condition not in the time of floods or freshets, but its condition generally and at ordinary times between freshets, and if the water was let off in quantities no greater than the channel would reason ably contain within the banks at ordinary times, then it it happened that on some occasion or occasions, the channel was already in whole or in part filled or occupied by high water, so that there was not room for both together to flow off harmlessly, and in that manner the plaintiff's lands were overflowed, this would give no cause of action The court is of opinion that, at such times of high water or partially high water, the city would not have to stop reasonable and proper operation any more than any factory or mill would have to stop the water from its wheels in like times for fear of making or increasing an overflow below. The city would have no right to let off more water or at greater rate than would be safe and prudent to proprietors below, when the channel was open and free to receive it and carry it off, and if no more than that was discharged from the dam, the defendant would not be liable, whether the plaintiff was injured or not. ...