City Council Of Augusta v. Marks

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN
• Citation: City Council Of Augusta v. Marks, 124 Ga. 365, 52 S.E. 539 (Ga. 1905)
• Decision Date: 20 November 1905
• Parties: CITY COUNCIL OF AUGUSTA. v. MARKS.

52 S.E. 539

124 Ga. 365

CITY COUNCIL OF AUGUSTA.

v.MARKS.

Supreme Court of Georgia.

Nov. 20, 1905.

1. Pleading — Declaration —Allegations of Time.

A declaration must aver a time when every material traversable fact alleged in it transpired. If it fail to do so, it is subject to special demurrer on that ground.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, § 39.]

2. Nuisance — Action for Damages—Limitations.

Although a suit for the creation of a nuisance may be barred by the statute of limitations, yet if the nuisance be of a continuing character, which can and should be abated, suit may be brought for damages arising from its maintenance.

[Ed. Note.—For cases in point,.see vol. 36, Cent. Dig. Municipal Corporations, § 1786; vol. 37, Cent. Dig. Nuisance, §§ 41, 111.]

3. Municipal Corporations — Sewebs—Action for Damages— Declaration.

Where a declaration alleged that a municipal corporation built through the lot of the plaintiff a sewer which was constructed to carry off waste water, but which was used also for the carrying of filth, sewage, and fecal matter, and that by reason of the existence of the sewer on his property and the maintenance of a "dumping station" or place for the discharge of such sewage near his residence he has been damaged, on special demurrer he should have been required to allege when the sewer was constructed and for what length of time the nuisance had been maintained during his ownership of the property, causing the damage sued for.

4. Same—Allegations of Demand.

Where an action for damages is brought against a municipal corporation, the declaration must allege a substantial compliance with the act of 1899, which requires persons having claims for money damages against a city to present the same for adjustment before bringing suit; but it is not necessary to annex to the declaration an exact copy of such written demand.

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1715, 1797.]

5. Same— Demobbed —Questions Raised.

The demurrer in this case does not raise the question of the sufficiency of the demand made, but is based upon the ground that a copy of the demand is not annexed to the petition, and the defendant, therefore, cannot state whether the petition and the demand correspond.

6. Nuisance —Action for Damages —Declabation—Value of Property Before Injury.

Where a declaration alleged that the market value of a lot belonging to the plaintiff had been depreciated in the sum of $3,500 by reason of a nuisance created and maintained by the defendant, such an allegation was subject to special demurrer, on the ground that it did not state what was the value of the lot before the injury.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 407.]

(Syllabus by the Court.)

Error from City Court of Richmond County; W. F. Eve, Judge.

Action by D. W. Marks, Jr., against the city council of Augusta. There was judgment for plaintiff, and defendant brings error. Reversed.

David W. Marks, Jr., brought an action for damages against the city council of Augusta. He alleged, that he was the owner of a lot bounded on one side by the Augusta canal, which was owned and operated by the defendant; that the defendant had caused to be built through his lot a large drain sewer, emptying immediately south of his lot and within a few feet of the windows of his dwelling; that it was constructed for a drain to carry off waste water, but the city used it not only for that purpose, but also to receive fecal matter and filth, which is thus carried through his lot and discharged very near his residence, generating noxious gases, vile stenches, and germs of disease; that this is a continuing nuisance and "by reason of the existence of said sewer on the property of your petitioner, and the maintenance by the city council of Augusta of a dumping station for its contents immediately against the property of your petitioner, " the market value of his lot has been depreciated in the sum of $3,500, and the health of his family has been greatly impaired, and he has been forced repeatedly to close up his home and find another place of residence, to his damage in the sum of $1,500; that 30 days before filing this suit he petitioned the city council in writing to abate the nuisance, and called to their attention the fact that he had been damaged in the sum of $5,000, but to this petition they made no response. The defendant demurred to the declaration; the demurrer was overruled, and the defendant excepted.

C. Henry Cohen, for plaintiff in error.

F. W. Capers, Pierce Bros., and Chas. P. Pressley, for defendant in error.

LUMPKIN, J. (after stating the facts). If by reason of a trespass upon realty it has been so injured as to render it permanently useless and valueless to the owner, he should recover the damages thus occasioned in a single action. Thus where a petition alleged that by the erection and maintenance of a dam certain land of the plaintiff and the timber thereon had been rendered worthless and of no value, and a recovery was had, the plaintiff could not maintain against the defendant another action again alleging the same facts as to the injuries sustained and their cause. Clark v. Lanier, 104 Ga. 184, 30 S. E. 741; Allen v. Macon R. Co., 107 Ga. 839, 33 S. E. 696. But if the nuisance was of such a character as could be abated and terminate the injury, the plaintiff would not be limited to a single action resulting from its creation, but might sue for injuries resulting from its maintenance. In that event, if he so desired, he might bring successive suits for damages resulting up to the time of bringing each suit, provided they were not covered by a former action, and were within the statute of limitations. Massengale v. Atlanta, 113 Ga. 966, 39 S. E. 578; Southern Ry. Co. v. Cook, 117 Ga. 286, 43 S. E. 697; Langley v. Augusta, 118 Ga. 590, 45 S. E. 486, 98 Am. St. Rep. 133; Southern Railway Co. v. Morris, 119 Ga. 234, 46 S. E. 85. Although the nuisance may have been created more than four years before the action was brought, if it be maintained as a continuing...