City Council Of Augusta v. Lombard

• Court: Georgia Supreme Court
• Writing for the Court: SIMMONS
• Citation: City Council Of Augusta v. Lombard, 101 Ga. 724, 28 S.E. 994 (Ga. 1897)
• Decision Date: 10 July 1897
• Parties: CITY COUNCIL OF AUGUSTA v. LOMBARD. LOMBARD v. CITY COUNCIL OF AUGUSTA.

28 S.E. 994

101 Ga. 724

CITY COUNCIL OF AUGUSTA

v.LOMBARD.

LOMBARD

v.CITY COUNCIL OF AUGUSTA.

Supreme Court of Georgia.

July 10, 1897.

Limitations — Nuisance — Pleading — General Demurrer—Amendment.

1. If a structure is not necessarily and of itself a permanent and continuing nuisance, but only becomes such in consequence of some supervening cause, which produces special injury at different periods, a separate action lies for each injury thus occasioned, and the statute of limitations begins to run against such cause of action only from the time of its accrual.

2. Where a defendant, it the appearance term, filed a general demurrer to a declaration, he could not, at the second term, amend such general demurrer by adding thereto grounds of special demurrer; and the filing of the special demurrer after the time allowed by law is a good reason why the court should overrule and disallow it.

(Syllabus by the Court.)

Error from superior court, Richmond county; E. H. Calloway, Judge.

Suit by R. O. Lombard, administrator, against the city council of Augusta, Ga., to recover for an alleged nuisance. From an order overruling defendant's demurrer, It brings error. Affirmed. Cross bill in error by plaintiff dismissed.

Wm. T. Davidson and M. P. Carroll, for city council of Augusta.

Black & Verdery, for R. O. Lombard.

SIMMONS, C. J. Lombard sued the city council of Augusta for damages, and the defendant demurred generally. This demurrer was overruled, and the defendant excepted. In the case of City of Augusta v. Lombard, 93 Ga. 284, 20 S. E. 312, this court held that, under a state of facts such as is alleged in the petition in the present case, the plaintiff had a right to recover. Under the principles there announced, the court did not err in ruling that the petition now under consideration set out a cause of action. There is another question here to be considered, which was not involved in that case, viz. as to whether the cause of action was barred by the statute of limitations; the petition showing on its face that the alleged wrongful removal of the water gates occurred more than four years before the filing of the suit, but that the special injury complained of occurred within less than that time. Our Code provides that all actions for trespass upon or damage to realty, or injuries to personalty, should be brought within four years after the right of action accrues. Civ. Code, §§ 3898, 3899. It therefore becomes necessary to determine whether Lombard's right of action accrued when the water gates were removed or only from the time when the special damage complained of was suffered. The doctrine of the application of the statute of limitations to actions for nuisance is discussed, with little disagreement, In quite a number of text-books and decisions. A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance Is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run. Troy v. Railroad Co., 23 N. H. 83: Railroad Co. v. McAuley, 121 Ill. 1G0, 11 N. E. 67; Stodghill v. Railroad Co., 53 Iowa, 341, 5 N. W. 495. Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance, for which a fresh action will lie. 3 Bl. Comm. 220. This action accrues at the time of such continuance, and against It the statute of limitations runs only from the time of such accrual. "Where the original nuisance to land is of a permanent character, so that the damages inflicted thereby are permanent, a recovery not only may, but must, be had for the entire damages In one action; and such damages accrue from the time the nuisance is created, and from that time the statute of limitations begins to run. In the case of nuisances which are transient, rather than permanent in their character, the continuance of the injurious acts is considered a new nuisance, for which a fresh action will lie; and, although the original cause of action is barred, damages may be recovered for the continuance of the nuisance." Railroad Co. v. McAuley, supra. "Where one creates a nuisance, and permits it to remain, it is treated as a continuing wrong, and giving rise, over and over again, to causes of action. But the principle upon which one is charged as a continuing wrongdoer is that he nas a legal right, and is under a legal duty, to terminate the cause of the Injury." Railway Co. v. Mini-man, 17 Kan. 231; Bonner v. Welborn, 7 Ga. 296; Phinizy v. City of Augusta, 47 Ga. 260; Smith v. City of Atlanta, 75 Ga. 110; Inhabitants of New Salem v. Eagle Mill Co., 138 Mass. 8; Colrick v. Swinburne, 105 N. Y. 503, 12 N. E. 427; Fell v. Bennett, 110 Pa. St. 181, 5 Atl. 17; Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629. Some of the authorities seem to hold that in cases of this kind recovery may be defeated by the acquisition, by the person maintaining the nuisance, of a prescriptive right to do so, to a degree not less than that of the principal act complained of. 2 Wood, Nuis. § 865. 1 Wood, Lim. 180, and cases cited. But see Bonner v. Welborn, supra (page 327), where Judge Lumpkin says, "A person never can, by prescription or otherwise, acquire a right to maintain a nuisance." Where the structure, though permanent in Its character, is not necessarily, and of itself, apermanent and continuing nuisance, but only becomes such in consequence of some supervening cause, which produces special injury at different periods, a separate action lies for each injury thus occasioned, and the statute begins to run against such cause of action only from the time of its accrual, —from the time when the special injury is occasioned. So this court has held that recovery might be had for injuries resulting from the erection and maintenance of a dam, in so far as such injuries occurred within 4 years...