City Council of Augusta v. Lombard
Decision Date | 10 July 1897 |
Citation | 28 S.E. 994,101 Ga. 724 |
Parties | CITY COUNCIL OF AUGUSTA v. LOMBARD. LOMBARD v. CITY COUNCIL OF AUGUSTA. |
Court | Georgia Supreme Court |
Syllabus by the Court.
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, at 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.
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.
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 III. 160, 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. Railroad Co. v. McAuley, supra. Railway Co. v. Mihlman, 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 A. 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, 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 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...
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Real Property - Linda S. Finley
...Id. 198. Id. 199. Id. at 415-16, 677 S.E.2d at 136-37. 200. Id. at 416, 677 S.E.2d at 137 (quoting City Council of Augusta v. Lombard, 101 Ga. 724, 727, 28 S.E. 994, 994 (1897)). 201. Id. (internal quotation marks omitted) (alteration in original) (quoting Lombard, 101 Ga. at 727, 28 S.E. a......
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Real Property - Linda S. Finley
...S.E.2d at 135. 148. Id. at 415-16, 677 S.E.2d at 136-37. 149. Id. at 416, 677 S.E.2d at 137 (quoting City Council of Augusta v. Lombard, 101 Ga. 724, 727, 28 S.E. 994, 994 (1897)) (internal quotation marks omitted). 2010] REAL PROPERTY 301 and against it the statute oflimitations runs only ......