City of Atlanta v. Due

• Decision Date: 20 February 1931
• Docket Number: 20643,20644.
• Parties: CITY OF ATLANTA v. DUE. DUE v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

157 S.E. 256

42 Ga.App. 797

CITY OF ATLANTA v. DUE.

DUE v. CITY OF ATLANTA.

Nos. 20643, 20644.

Court of Appeals of Georgia, Second Division

February 20, 1931

Syllabus by the Court.

Petition for damage by improper drainage system stated cause of action for loss sustained from damaging of private property for public purpose (Civ. Code 1910, § § 897, 4457; Const. art. 1 § 3, par. 1).

The present suit is construed as an action for loss sustained by the plaintiff from the damaging of his property for public purposes; and, the allegations being sufficient to set forth a cause of action, there was no error in overruling the general demurrer to the petition.

Recovery for damage to property for public purpose is limited strictly to actual diminution in value of property (Civ. Code 1910, § 897; Const. art. 1, § 3, par. 1).

Since the measure of recovery in such a case is limited strictly to the actual diminution in the value of the property, the court properly struck on special demurrer the other items claimed.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Suit by O. N. Due against the City of Atlanta. Judgment for plaintiff, defendant brings exception, and plaintiff filed cross-bill of exception.

Affirmed on both bills of exception.

Petition for damage by improper drainage system stated cause of action for loss sustained from damaging of private property for public purpose (Civ.Code 1910,§§ 897, 4457; Const. art. 1, § 3, par. 1).

O. N Due sued city of Atlanta for damages. The city excepts to the overruling of its general demurrer to the petition, and in a cross-bill of exceptions, the plaintiff assigns error upon the sustaining of the special demurrer as to certain items of damages claimed.

The plaintiff was the owner of a residence and lot on East avenue in the city of Atlanta, which he claimed was damaged from causes set forth in his petition. The gravamen of his complaint will appear from the following allegations:

"Petitioner says that on the 11th day of August, 1926, there was a hard rain in the city of Atlanta, and that large quantities of rain came down East Avenue and from nearby streets and areas and flooded East Avenue in front of petitioner's home, and the water poured across petitioner's yard and into his backyard and into his basement, and washed away concrete steps and concrete walks, and washed away and weakened and injured the retaining walls of petitioner's yard, the foundation walls of petitioner's residence, all in the sum of $280; and furthermore injured petitioner's floors and carpets and furniture and inside walls, and injured petitioner's yard and yard-walls and shrubbery in the additional sum of $189.

"Petitioner says that said injuries and damage was on account of the negligence and negligent and improper manner of the City of Atlanta in repaving and regrading East Avenue, and Forest Avenue, and Highland Avenue and Glen Iris Drive, and McKenzie Drive and Prospect Place and Howell Street in such a way as to greatly increase the flow of water during and immediately after rains into East Avenue and in front of petitioner's said residence, and in not constructing sufficient man-holes and catch-basins and drains and sewers and curbs to accommodate and control such flow of water, and in interfering with and increasing the natural flow of water into East Avenue in front of petitioner's residence, causing increased volumes of water to flow into East Avenue in the vicinity of and in front of petitioner's residence as aforesaid. Petitioner says that said rain of August 11, 1926, was not unusual nor unprecedented, but that there have been numbers of similar rains since petitioner has resided there.

"Petitioner says that when East Avenue was paved with hard pavement a year and a half ago the middle of the street was lowered about one and one half feet in front of petitioner's property from what it was before, and that the curbing in front of petitioner's lot was left about one foot lower above the street than it was before the repaving of said street, by reason of which the water at the time of hard rains overflows to a larger extent than it did before East Avenue was so repaved. Said repaving was done under the direction and supervision of the city of Atlanta. Petitioner says that the curb is too low on East Avenue in front of his property and that the city of Atlanta has not made sufficient provision on East Avenue and on nearby streets and areas in the way of manholes, drains and sewers, catch-basins, to control and to accommodate said water which comes always at times of hard rains.

"Petitioner says that within the past two years Prospect Avenue and McKenzie Drive, and Howell Street, have been paved with hard pavement, as well as Randolph Street, and that within recent years Glen Iris Drive and Highland Avenue have been paved with hard pavement, and the result is that vastly more surface water comes down from said streets and from the areas served by said streets than formerly came down before said streets had hard pavements. And the City of Atlanta should have constructed more catch-basins, and manholes and sewers and drains for the purpose of carrying off and controlling said water. Petitioner says that the amount of water coming into East Avenue from these adjacent streets is tremendously more now than when petitioner first moved into his property six years ago. Less water soaks in the ground on these streets than formerly.

"Petitioner says that when said volume of water flows over his front yard and into his backyard it accumulates in his backyard, and that the city has not made adequate provision for the water to flow out of and off of his backyard, but that the same accumulates in his backyard and rises until it gets to be a deep lake and does not flow off but backs up into his basement, aforesaid, which is an essential part of his residence, wholly above the ground, fitted up into rooms and used for bedrooms and living rooms, and the water so rising damages petitioner's walls and carpets and furniture, as above stated. Petitioner says that Forest Avenue, which is the street immediately north of petitioner's said property, was also regraded and repaved, and the grade raised some ten or twelve feet, and no provision was made for the surface water which naturally flowed across petitioner's lot to pass under or through Forest Avenue, with the result that water accumulates in the rear of petitioner's property and in the vacant lot immediately north of petitioner's lot between petitioner's lot and Forest Avenue, so that water stands on said lot in the summer time, becomes stagnant, and breeds flies and mosquitos and is unsanitary and objectionable, all of which is on account of the city of Atlanta being negligent in not providing for said surface water to pass out at or through Forest Avenue, *** as a result, petitioner's backyard becomes noisome, bad smelling, and unhealthy, resulting in and causing illness to petitioner and his family.

"Petitioner says that the City of Atlanta was negligent in not making these regrades and repavings in a proper manner and in not placing catch-basins, manholes, sewers, and drains, and curbs in intelligent and scientific manner, so as to properly control the flow of surface water and so as not to increase the natural flow of water over petitioner's property, and so as to properly conserve and preserve the rights and interests of property owners. Petitioner says that the city did all of these things in a negligent, unintelligent and unscientific fashion, and knew or should have known the proper way to plan and to do said work of repaving and regrading and caring for surface water.

"Petitioner says that the defendant was negligent in the construction of the sewers and drains in the manner set forth in this petition without insufficient and improperly located sewers and drains, of too small a capacity and with too few and too small catch-basins and manholes to carry off and control the water that flows thereon and thereover and therethrough. And defendant is and ever since the said sewers and drains were constructed negligently maintained said sewers and drains to the injury of petitioner as aforesaid, and to his damage as aforesaid. And defendant now maintains the same in a negligent manner, to the injury and damage of petitioner as above set forth.

"Petitioner says that defendant was negligent in lowering the grade of East Avenue in front of petitioner's residence, and in lowering the curb in front of his residence, as aforesaid, in such a way as to cause increased flow of water at said point, to the injury and damage of petitioner, and is guilty of negligence in maintaining said street and said curb at said lower grade, to the injury and damage of petitioner. Said regrading and said repaving was negligently done, in that it was lowered as aforesaid, to the injury and damage of petitioner. And defendant was negligent in the manner in which it paved and regraded Forest Avenue, Highland Avenue, Glen Iris Drive, McKenzie Drive, Prospect Place, and Howell Street in a way to increase the flow of water on East Avenue in front of petitioner's residence as aforesaid, and in negligently and unlawfully increasing said flow of water at said point, and defendant was guilty of negligence in that it provided an insufficient number of catch-basins, drains, manholes, and sewers to take care properly of the water that would come down said streets and areas, with the result that said water is concentrated on East Avenue in front of petitioner's property, overflows the curb and sidewalk, and floods petitioner's premises, as aforesaid. And defendant is negligent in that it maintains all of these deficiencies and defective features,

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