City Council Of Augusta v. Lamar, (No. 17990.)

• Decision Date: 19 November 1927
• Docket Number: (No. 17990.)
• Citation: 37 Ga.App. 418,140 S.E. 763
• Parties: CITY COUNCIL OF AUGUSTA. v. LAMAR.
• Court: Georgia Court of Appeals

37 Ga.App. 418

140 S.E. 763

CITY COUNCIL OF AUGUSTA.

v.LAMAR.

(No. 17990.)

Court of Appeals of Georgia, Division No. 2.

Nov. 19, 1927.

(Syllabus by Editorial Staff.)

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by J. C. Lamar against the city council of Augusta. Demurrers to petition were overruled, and defendant brings error. Reversed.

Archibald Blackshear, of Augusta, for plaintiff in error.

Rodney S. Cohen, of Augusta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J. Lamar sued the city council of Augusta for the value of certain gathered crops and a building, located on an island owner by him in the Savannah river, near to and above the city of Augusta, which he alleges were inundated and destroyed by flood waters of the river. He alleges that the city of Augusta constructed a levee along the banks of the river, near to and below the island, in order to prevent the overflow of the river at flood stage into the city; that the levee serves to confine the river, in flood stage, within narrow limits, and prevents the waters from expanding out over the banks, resulting in the increase of the natural level of the water; that about January 15, 1925, and for about a week thereafter, the waters of the river reached an abnormal height, due to continuous and excessive rains, and by reason of being thus constricted by the levee built by the city, with the result that the island was completely inundated, and that the crops and building, the value of which are sued for, were washed away and destroyed, damaging the plaintiff in the sum of $4,250, of which $1,000 is represented by the value of the building, and $3,250 by the value of the gathered crops. The city filed its general and special demurrer, setting forth that the levee was built by the city in pursuance of an act of the General Assembly of 1909 that there was no legal duty upon the city to protect the island belonging to the plaintiff, and no allegation that the city was negligent in constructing the levee, or that the alleged damage to the plaintiff's property resulted from any negligence of the city in the construction or maintenance of the levee; that the city, in building and maintaining the levee, was engaged in a governmental function, and is not liable except when such functions are exercised negligently; that the damages set forth are too remote and consequential to be the subject-matter of a recovery; that the petition shows that the proximate cause of the destruction of the plaintiff's property was the unprecedented rainfall, for which the city is in no way liable. There is no demurrer to the failure of the petition to set forth the date when the levee was constructed. The court overruled the demurrers, and the defendant excepts.

Held:

1. Under the Constitution of the state of Georgia, "private property shall not be taken or damaged, for public purposes, without just and adequate compensation being first paid." Civ. Code 1910, § 6388. Accordingly, if property is damaged, even by the prudent and proper exercise of a power conferred by statute, the owner is entitled to just compensation in an amount represented by the difference between the market value of the property before and after the procedure taken for public purposes. Mayor etc., of Albany v. Sikes, 94 Ga. 30, 20 S. E. 257, 26 L. R, A. 653, 47 Am. St. Rep. 132; Sheppard v. Ga. Ry. & Power Co., 31 Ga. App. 653, 121 S. E. 868; Mayor, etc., of Macon v. Daley, 2 Ga. App. 355, 58 S. E. 540.

2. In such a case, that is, where the public authorities properly erect and properly maintain the improvements authorized by law, an action in tort is not maintainable by the owner of damaged property on the theory that the act of the public authority amounts to the maintenance of a continuing, abatable nuisance, such as would authorize periodical recoveries for subsequently accruing consequential damages, since "that which the law authorizes to be done, if done as the law authorizes it to be done, cannot be a nuisance." Burrus v. Columbus, 105 Ga. 42, 46, 31 S. E. 124, 125; Bacon v. Walker, 77 Ga. 336; Fark-as v. Towns, 103 Ga. 150, 156, 29 S. E. 700, 68 Am. St. Rep. 88; Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749, 754, 65 S. E. 844; Sheppard v. Ga. Ry. & Power Co., 31 Ga. App. 653, 656, 121 S. E. 868. In such a case, the only right of action which is maintainable is that conferred by the quoted provision of the Constitution. It does not sound in tort, and the recovery permitted is strictly limited to the direct damage inflicted by diminishing the market value of the property damaged, as measured by the difference in its marketvalue before and immediately after the construction of the public works, excluding all consequential damages subsequently accruing, such as might be recoverable in an action sounding in tort, based on the maintenance of a continuing, abatable nuisance.

3. "While, as a general rule, allegations of fact are to be construed most strongly against the pleader, yet, in the absence of special demurrer, where the facts alleged in a petition are such as would be proper and adequate to support one form of action, but inadequate, although appropriate, to another form of action, and where the...