City Council of Augusta v. Lombard

• Court: Georgia Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: City Council of Augusta v. Lombard, 93 Ga. 284, 20 S.E. 312 (Ga. 1893)
• Decision Date: 27 November 1893
• Parties: CITY COUNCIL OF AUGUSTA v. LOMBARD

20 S.E. 312

93 Ga. 284

CITY COUNCIL OF AUGUSTA v. LOMBARD

Supreme Court of Georgia

November 27, 1893

Syllabus by the Court.

1. Where a broad scheme of manufacturing by the use of water power embraces the duty on the part of the owner of the water to furnish an adequate and continuous supply to numerous separate and distinct manufacturing establishments, and to keep the canal, its races, and the openings of such races, in proper condition for that purpose with reference to the ordinary stages of the water, anything in the way of removing obstructions to the free flow of the water, which is necessary or proper to be done in order to perform these duties, may be rightly done, although the doing of it will render the canal and one or more of its races more subject to overflow in times of high and extraordinary freshets, and one or more of the manufacturing establishments may thereby be exposed to serious damage on these extraordinary occasions.

2. No diligence on the part of the water owner to anticipate and provide against extraordinary floods is due to its patrons excepts such as is consistent with a right performance of the main, constant, and regular duties above referred to. If, in the present case, the removal of the structure at the head of the race was necessary or reasonably proper as a means of furnishing at ordinary stages of the water a continual and adequate supply to the establishments located along the race the removal of the structure was not wrongful as against the plaintiff, and he could not recover; but if the removal was not necessary or reasonably proper for this purpose, and if the defendant, in the exercise of ordinary diligence, could and should have foreseen that it would expose the plaintiff's establishment to damage by any freshet not higher than some which were known to have previously occurred in the history of the same general manufacturing enterprise then the removal would be wrongful, and the plaintiff, if injured thereby, might recover.

3. The court erred in charging the jury thus: "If, however, the gates were not originally put there for the purpose claimed in plaintiff's suit, but were afterwards used by the city for that purpose, and so known to the plaintiff, and defendant knew plaintiff relied upon the gates for the protection of his property, and they were really necessary to protect his property, and the removal of the same was the direct or proximate cause of the damages claimed, then the city would be liable for such damages as have been shown to flow from said causes."

4. All evidence as to freshets subsequent to that by which the damage complained of in the declaration was done was irrelevant and inadmissible.

5. The mere opinion of a witness that the damage would not have been done if the conditions had remained unchanged is not admissible; but his opinion, together with the facts on which it was founded, would be admissible. The same rule holds as to the opinion of a witness that the current by which the damage was done came down the race, and not from another direction.

6. That the plaintiff, if he had known the act complained of would thereafter be done by the defendant, would not have engaged in business where he did, and where the damage was sustained was irrelevant, as there was no stipulation between the parties touching the matter, and nothing was said on the subject before the plaintiff did engage in business at that place.

7. The court erred in not granting a new trial.

Error from superior court, Richmond county; H. C. Roney, Judge.

Action by Charles F. Lombard against the city council of Augusta to recover damages resulting from the removal of water gates in the Augusta canal. Verdict for plaintiff. From an order denying its motion for a new trial, defendant appeals. Reversed.

In an action against a city which is the owner of a water power for the removal of water gates, which resulted in damages to plaintiff on the occurrence of a freshet by causing his premises to be flooded, evidence as to subsequent freshets is inadmissible.

The following is the official report:

Lombard sued the city council of Augusta for damages resulting from the removal by the defendant of water gates which had been put in the second level of the Augusta canal, at the entrance of the headrace which conveyed the water to the plaintiff's foundry. A verdict in the plaintiff's favor was rendered, and the defendant excepted to the overruling of its motion for a new trial. The declaration was filed on March 26, 1888. It alleges that on July 31, 1887 and for a long time before, the plaintiff was, and still is, the lessee of property in Augusta on the east side of Kollock street, and immediately on the south side of the third level of the Augusta canal, on which property he was carrying on a foundry business, the machinery of which foundry was run by water received from a headrace from the second level of the canal, for which water he pays the defendant a large rental; that, at the time of the building or cutting of the headrace, strong and substantial water gates, with solid brick abutments, were constructed at the point where the headrace leaves the second level of the canal, and the main object in constructing the water gates was to regulate and control the volume of water passing through the headrace during periods of very high water in the Savannah river, and consequent high water in the second level of the canal; that, early in the spring of 1887, the defendant had the water gates taken out, notwithstanding plaintiff's objections, who earnestly protested at the time, and notified the defendant's officers and agents superintending the removal of the gates that the effect thereof would be to seriously damage him at times of high water; that in consequence of said removal, on Sunday, July 31, 1887, when the Savannah river reached its highest stage, large and unusual quantities of water flowed from the headrace in such volume as to run over the banks or dams of the headrace, which dams of the headrace were lower by one or two feet than the dam of the second level of the canal, by which sixty feet or more of the bank or dam next to his foundry yard and buildings was washed away, and large quantities of water precipitated upon his premises; that the loss thereby resulting to him was caused by the negligent, reckless, and unnecessary removal of the water gates, which had been constructed for the purpose of guarding against the very character of injuries herein complained of, and but for their removal the damage would not have been done him; and that defendant is the owner, and has sole control, supervision, and management, of the canal and its branches. In addition to the plea of not guilty, the defendant sets up the following: The gates were not constructed to regulate and control the volume of water passing through the headrace during periods of very high water in the Savannah river and consequent high water in the second level of the canal, but as head gates of the race way for the...