Central Georgia Power Co. v. Stubbs

• Decision Date: 19 December 1913
• Parties: CENTRAL GEORGIA POWER CO. v. STUBBS.
• Court: Georgia Supreme Court

80 S.E. 636

141 Ga. 172

CENTRAL GEORGIA POWER CO. v. STUBBS.

Supreme Court of Georgia

December 19, 1913

Syllabus by the Court.

Where an electric company, engaged in the business of generating electricity, and transmitting it over wires to various parts of the state, has its principal office in one county, and its dam and power plant for generating the electricity in another, it is liable to suit in still another county for damage there caused by water backed into such county although it has there no office, agent, agency, or transmission line.

(a) In such a case, an act of the Legislature (Laws 1912, p. 68, § 4) fixing the venue of suits against such companies in the county where the cause of action arises does not violate the provision of article 6, § 16, par. 6, of the Constitution of this state (Civ. Code 1910, § 6543), which declares that "all other cases shall be tried in the county where the defendant resides."

(b) Nor does such act violate the provisions of article 1, § 1, par 25, of the Constitution of this state (Civ. Code 1910, § 6381), which declares that "all citizens of the United States, resident in this state, are declared citizens of this state; and it shall be the duty of the General Assembly to enact such laws as will protect them in the full enjoyment of their rights, privileges, and immunities due to such citizenship."

(c) Nor does the act violate article 1, § 3, par. 2, of the Constitution of this state (Civ. Code 1910, § 6389), which reads: "No bill of attainder, ex post facto law retroactive law, or laws impairing the obligation of contracts, or making irrevocable grants or special privileges or immunities, shall be passed."

(d) Nor does the act violate article 1, § 1, par. 3, of the Constitution of this state (Civ. Code 1910, § 6359), which provides that "no person shall be deprived of life liberty, or property, except by due process of law;" nor amendment 14 of the Constitution of the United States, which declares that: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the states wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law."

(e) Nor does the act violate article 1, § 1, par. 2, of the Constitution of this state, which says that "protection to person and property is the paramount duty of government, and shall be impartial and complete."

Where an electric company erected a dam and created a reservoir for the purpose of generating electricity, and the reservoir contained stagnant water, in which mosquitoes were bred, and miasma created, which caused the sickness of many people in the vicinity of the pond, some of whom moved away, and others died, and thus prevented the plaintiff from renting his storehouse, and prevented customers from patronizing his mill, such failure to rent and loss of profits would not be the basis to recover damages by the plaintiff from the defendant company, unless the injury to those who were made sick and moved away, etc., was shown to have been willful, and done for the purpose of injuring the plaintiff.

(a) In so far as the plaintiff, under the allegations contained in paragraph 16 of the petition as amended, seeks to recover damages for loss of the crops of his tenants, the petition is subject to the demurrer filed against it.

(b) The owner of farm lands upon which is located his dwelling house, in which he and his family resides, may recover damages for the sickness of himself and family occasioned by the creation or maintenance by another of a nuisance which is adjacent to the farm and dwelling.

(c) Where suit is brought against an electric company to recover damages alleged to have been caused by the construction of a reservoir. and the ponding of water therein, and so maintaining the same as to constitute a nuisance dangerous to the life, health, and property of the plaintiff, and it is alleged that the nuisance is part of an electric system which is permanent, and intended to remain forever, and that the nuisance is of such a permanent character that it cannot be abated, and, if abated, the permanent damages to the plaintiff's land would be the same, as the abatement of the nuisance would not lessen the damage to the entire value of the land, such averment of permanent damages is not subject to the objection that under the allegations only a temporary nuisance, if any, is shown, and that the plaintiff is entitled to recover, if at all, only the damages sustained until the commencement of the suit.

(d) In such a case, the plaintiff is entitled to recover, if at all, the entire damages in one action, measured by the difference between the value of the land prior to the creation of the nuisance and its diminished value on account of the nuisance, to which special damages may be added, if a proper case therefor is made.

A general allegation that the plaintiff is entitled to damages caused by the nuisance, because, "during the fall and winter of 1911 and 1912, covering a period from August 1, 1911, to April 1, 1912, petitioner incurred and expended for physician's services to himself, wife, and children the sum of $500, and for medicines for himself, wife, and children the sum of $200," is not subject to special demurrer calling for an itemized statement of the claim.

Error from Superior Court, Newton County; L. S. Roan, Judge.

Action by J. T. Stubbs against the Central Georgia Power Company. Judgment for plaintiff, and defendant brings error. Affirmed in part, and reversed in part, with directions.

J. F Stubbs brought suit against the Central Georgia Power Company, alleging as follows: The defendant was chartered by the laws of Georgia, and is an electric company engaged in the business of generating electricity, and in transmitting the same over wires to various parts of the state of Georgia, and has its principal office and place of business in Bibb county, Ga. The plaintiff is the owner of 522 acres of land in Newton county, in the forks of the Yellow and Alcovy rivers, and being his "Home Place." The defendant is the owner and operator of an electric power plant located on the Ocmulgee river in Butts county, Ga., several miles below the lands of the plaintiff, and, for the purpose of procuring power with which to generate electricity, has erected an immense dam about 100 feet high across the Ocmulgee river at that point. The dam backs the water in the Ocmulgee river, South river, and Alcovy river above the same, up the three rivers for a distance of about 15 miles, which backwater reaches the edge of plaintiff's land, and almost surrounds it. Much of this water which surrounds petitioner's land is stagnant water. The defendant is the owner of an immense reservoir, about 15 miles in length and from 1 to 5 miles in width, which is now covered with water backed upon it from the dam, which water almost entirely surrounds the plaintiff's land. The defendant negligently left a large amount of growing trees, dead trees, stumps, fallen timber, brush, and other trash in the reservoir, and backed the water upon and over the same, which has decayed, and on account of the decaying timber, stumps, etc., together with the fact that much of the water is stagnant, and cannot flow off, the air has been poisoned for miles around the pond. The ponding of the water has caused the air to become impregnated with miasma, malaria, and other poisonous germs, and noxious odors, which extend over the entire country, and over all of the plaintiff's land. The poisoned air has bred and is still breeding diseases known as chills and fever, and malarial fever, and has made nearly all the people who resided on plaintiff's land, and in the entire country around it for 7 or 8 miles in all directions, sick with chills and fever, or malarial fever, and many of them have died from said diseases. The ponding of the water, mixed with the decaying trees, etc., has also caused millions of mosquitoes of the disease breeding type to breed in and around the reservoir, and to scatter over all of plaintiff's land and the surrounding country, and has made nearly all the people who reside on plaintiff's land, and for 7 or 8 miles around it in all directions, sick with chills and fever, or malarial fever, and many of them have died from these diseases. The defendant, since the dam was finished and the reservoir was filled with water in December, 1910, or January, 1911, has kept and maintained the reservoir, and is now maintaining it, in the same condition described above. Up to the time of the building of the dam, etc., there were no chills and fever, malarial fever, or other diseases of the kind in the neighborhood, and plaintiff and his family enjoyed good health; but early in the summer of 1911 he, and his wife, and six minor children were stricken with malarial fever, and were unable to work during the rest of the year (about six months), and they continued sick until the end of the year, when they were all compelled to move away from their home on account of the sickness, and from fear of death from the same. They still suffer from the sickness, and have to take medicine. During the time they were sick they suffered great pain and mental anguish, and plaintiff was compelled to pay large sums to physicians for attending himself, and his wife, and children, and for medicines. All the sickness of himself and family was caused by the poisonous air from the reservoir, and from the bites of mosquitoes in and around the reservoir, etc. ...