City Council of Augusta v. Thorp

• Decision Date: 04 April 1961
• Docket Number: No. 2,No. 38634,38634,2
• Citation: 103 Ga.App. 431,119 S.E.2d 595
• Parties: CITY COUNCIL OF AUGUSTA v. Eugene THORP
• Court: Georgia Court of Appeals

Page 595

119 S.E.2d 595

103 Ga.App. 431

CITY COUNCIL OF AUGUSTA v. Eugene THORP.

No. 38634.

Court of Appeals of Georgia, Division No. 2.

April 4, 1961.

Syllabus by the Court.

1. A cause of action was stated in each of the three counts of the petition, and the trial court did not err in overruling the demurrers thereto.

2., 3. The trial court did not err in denying the amended motion for a new trial.

This was an action for damages brought by Eugene Thorp against M. Gary Satcher, the Gary Satcher Realty Co., the Gary Satcher Construction Co. and the City Council of Augusta. The petition, as finally amended, was brought in three counts. Count 1 alleged that the plaintiff is the owner of certain described real property located on Kentucky Avenue approximately 50 feet from its intersection with Damascus Road and approximately 75 feet downhill from a new subdivision being built by the defendants, M. Gary Satcher, the Gary Satcher Realty Co., and the Gary Satcher Construction Co., known as Daniel Heights, in the City of Augusta; that the real estate known as Daniel Heights was acquired by the defendants from the City Council of Augusta who retained ownership of the streets in the subdivision, and who, as a condition of sale and development of the property, agreed to install water and sewer lines, and that the defendants, M. Gary Satcher, the Gary Satcher Realty Co. and the Gary Satcher Construction Co., as a condition of the sale, agreed to pave, curb and gutter the streets in the said subdivision in accordance with plans and specifications prescribed by the City Council of Augusta; that in accordance with the said plans and specifications, M. Gary Satcher, the Gary Satcher Realty Co., and the Gary Satcher Construction Co., during the months of January through May of 1958, paved, curbed and guttered the streets in the said subdivision including Lamar Road and Damascus Road; that the said Damascus Road was paved to within 200 feet of its intersection with Kentucky Avenue, that being the point at which these defendants were to stop paving, and that thereafter the paving, curbing and guttering was approved and accepted by the City Council of Augusta; that since January of 1958, M. Gary Satcher, the Gary Satcher Realty Co. and the Gary Satcher Construction Co. have constructed many houses in the subdivision, the exact number being unknown to the plaintiff; that the plans and specifications of the City Council of Augusta did not provide for the drainage of surface water on the streets anywhere but downhill in the direction of the plaintiff's property, and that this condition was known to the City Council of Augusta and to all the other defendants, yet even after the first flooding of the plaintiff's property, the City Council of Augusta took no effective steps to correct the aforesaid condition, which was and is a nuisance; that the paving, curbing and guttering of the streets in the subdivision merely provided for the channeling of surface water arriving upon the streets downhill in the direction of the plaintiff's property; and that the effect of the construction was to divert, collect, and channel all of the surface water on the streets downhill in the direction of the plaintiff's property; that prior to the construction of the Daniel Heights Subdivision, the plaintiff had very little drainage of surface water onto his property but now at every rain a tremendous quantity is thrown onto, over and across the plaintiff's property causing great flooding, which is a nuisance dangerous to life and health due to the said flood waters standing beneath the plaintiff's house and on at least four occasions the waters have flooded the interior or the plaintiff's house; that the rush of water across his property has swept away topsoil and washed away the ground beneath the foundation of his home causing certain damage thereto; that all of the aforesaid damage to the plaintiff's house was caused by the negligence of the defendants in so constructing, paving, curbing and guttering the said streets in such a manner as to collect, divert, and channel all the surface water onto and across the plaintiff's property.

Count 2 of the petition restated each of the allegations of court 1 and in addition thereto alleged that prior to the construction of Daniel Heights Subdivision, the plaintiff had very little drainage of surface water on his property, and that the system for the drainage of surface water from the streets in the area was sufficient for that purpose but that by reason of the changed condition due to the construction of houses and the construction of pavements on the streets, the natural seepage of surface water was prevented and said changed condition concentrated and augmented the water flowing through the streets, and that the drainage system had become inadequate to carry off the water so accumulated with sufficient rapidity to prevent it overflowing upon the plaintiff's property, and that this condition was known to the City Council of Augusta, yet the said City Council of Augusta maintained the said drainage system in an inadequate condition; that the City Council of Augusta had failed and neglected to pave and provide for the drainage of surface water in the section of Damascus Road...