City of Macon v. Cannon

• Court: Georgia Court of Appeals
• Writing for the Court: SUTTON
• Citation: City of Macon v. Cannon, 89 Ga.App. 484, 79 S.E.2d 816 (Ga. App. 1954)
• Decision Date: 14 January 1954
• Docket Number: No. 34820,No. 1,34820,1
• Parties: CITY OF MACON v. CANNON

Page 816

79 S.E.2d 816

89 Ga.App. 484

CITY OF MACON v. CANNON.

No. 34820.

Court of Appeals of Georgia, Division No. 1.

Jan. 14, 1954.

Syllabus by the Court.

1. In a suit against a municipality for maintaining a sewer as a nuisance, it was not error to admit evidence of increased flow of water, through a sewer or drain running across the plaintiff's property, after the paving of a highway by the State Highway Department, where the city maintained the highway in question as a city street after it had been paved.

2. The charges of the court to the jury, complained of in special grounds 3 and 4 of the motion for new trial, were authorized under the facts of the case and were not error for any reason assigned.

3. The charge to the jury, to the effect that, if the sewer was formerly adequate but later became inadequate to carry the surface water from an ordinary rainfall and overflowed onto the plaintiff's property to the defendant's knowledge, then the maintenance of such conditions would constitute a nuisance, was authorized by the evidence and was not error for the reason assigned.

4. A municipality is liable for maintaining a storm sewer or drainage system which, through changed conditions, becomes inadequate to remove surface water and results in a nuisance to a property owner adjoining the sewer; and the charge to this effect was not error.

5. The request to charge that proof of danger to life or health of the plaintiff was essential to a recovery under the first count of the petition was substantially covered by the general charge, and it was not error to refuse to charge such request.

6. The request to charge that the plaintiff could not recover if her damage resulted solely from the increased flow of water caused by the paving of said highway was not a correct statement of the law applicable to the facts of this case, and the refusal to give that request was not error.

7. The evidence authorized the verdict for the plaintiff, and the court did not err in denying the motion for new trial.

Mrs. Pearl Cannon filed an action against the City of Macon on November 10, 1948, for damages to certain real property which she owned there. Her petition in three counts was held good as against the defendant's general demurrers in Cannon v. City of Macon, 81 Ga.App. 310, 58 S.E.2d 563; it being there ruled that a cause of action was set forth in each of the three counts against the city for maintaining a nuisance. The allegations of the petition are fully stated in the report of that case, but will be summarized here.

In the first count, the plaintiff alleged that, since 1947, she has owned a house and lot on the north side of Clinton Street in the City of Macon, and that a storm sewer runs across her lot and under her house, at which point the sewer is about three feet wide and four feet deep, with concrete floor and walls underground and a curved, concrete top above the ground. The sewer begins at the intersection of Center Street with the south side of Emery Highway in the City of Macon, then runs south across Lee, Garden, and Hydrolia Streets and parallel to Center Street, and then turns southeast, running parallel to Clinton Street and under the plaintiff's house. The sewer is partly an open ditch and, where it passes under the streets and across some portions of the land between the streets, is a covered storm sewer. The ditch was originally a natural drain, carrying the rainfall from adjacent areas, and was of sufficient size to carry all natural rainwater from the area without overflowing or damaging the adjoining property. Over the years, the City of Macon has greatly increased the amount of water flowing in this sewer by paving many of the streets in the area near the sewer and by connecting storm sewers from the paved streets to the sewer running beneath the plaintiff's house. Specifically, in 1944, the City of Macon constructed Emery Highway, making a four-lane paved street of what had formerly been a small dirt street. In constructing this highway, the defendant city located storm sewers to collect the rainwater falling upon Emery Highway within 100 to 200 yards in either direction from the intersection of Emery Highway and Center Street, and channeled such water into the storm sewer beginning there. The amount of water emptying into said sewer has been tripled by the paving of Emery Highway, because water formerly was absorbed into the stret itself or else by natural flow and seepage went to other points. In 1946, the defendant city widened and paved Center Street for three blocks from Emery Highway down to Clinton Street and installed storm sewers leading from Center Street to the sewer running beneath the plaintiff's house, which also increased the amount of water flowing into said sewer, because all of the water falling on Center Street from Emery Highway to Clinton Street was collected and channeled into said sewer, while formerly much of the water was absorbed into the street and the ground between Center Street and the sewer, and the natural flow of the water was formerly downhill along Center Street and away from the sewer. The direct result of the defendant's actions in increasing the flow of water in the sewer underneath the plaintiff's house has been to cause an amount of water exceeding the capacity of the sewer under the plaintiff's house to be emptied into it during any normal rain. The water rushing through the sewer where it crosses the plaintiff's property has washed holes in the walls, floor, and top of the sewer, so that at times of normal rainfall water leaves said sewer and washes into the plaintiff's adjoining land, gradually washing away the ground and undermining the foundations of the plaintiff's house. During the heavy rains occurring in January and February, 1948, the volume of water passing into said sewer was so great that three pillars under the plaintiff's house were undermined and caused to sink several inches. Holes were washed below the concrete floor of the sewer itself, so that water remains stagnant in the holes, breeding mosquitoes and rendering the premises sickening and unhealthy. The effect of the sinking of the pillars beside the sewer and under the plaintiff's house has been to remove the support from the house, damaging it in certain respects and rendering it unsafe and dangerous to the life and health of the plaintiff and her family. As a result of the damage, the market value of the plaintiff's house has been decreased from $3,500 to $2,000, a difference of $1,500, for which the suit was brought. The defendant city's acts of increasing the flow of water in said sewer beyond its capacity, and thereby damaging the plaintiff's property, constitute a nuisance.

The allegations of the second count are substantially the same as those of the first, with the following additional allegations, in substance: More than twenty years ago, the City of Macon began to empty various storm sewers into said ditch, and thereafter regularly used and controlled said ditch by making repairs upon it, and so adopted and took it over as a part of the drainage system for that part of the city. The city made concrete walls and a floor for the part of the ditch on the lot adjoining the plaintiff's in 1942, placed rock reinforcements along the sides of the sewer near Hydrolia Street in 1948, and regularly removed debris from the sewer below the plaintiff's house after every heavy rainfall for the past seven years. The defendant failed to increase the size of the sewer running beneath the plaintiff's house to take care of the additional surface water emptied into it and made no provision to dispose of such additional water. The defendant had notice of the insufficient capacity of the sewer prior to the damage complained of and refused to remedy it. The damage to the plaintiff's property was caused by the negligence of the defendant city, through its agents and servants, in the following particulars: (a, b) in failing to inspect and keep in repair the sewer located on the plaintiff's property; (c) in failing to maintain the sewer so as to confine the water to the sewer itself; (d) in failing to provide for the control of the water in the sewer after emptying water into it from other storm sewers; (e) in failing to determine the capacity of the sewer under the plaintiff's house to handle the volume of water emptying into the sewer; (f) in failing to enlarge the sewer after notice that it was of insufficient capacity; (g) in increasing the paved surfaces of the streets near the sewer and channeling the increased volume of water collecting on such streets into the sewer beneath the plaintiff's house; (h) in failing, after notice of inadequacy, to construct additional storm sewers to provide for the increased volume of surface water accumulating within the area surrounding the sewer; and (i) in maintaining an inadequate storm sewer on the plaintiff's property. The inadequate storm sewer under the plaintiff's house overflowed during any normal rainfall, and was a continuing nuisance; and the city was negligent in maintaining a nuisance on the plaintiff's property.

The third count of the petition was not insisted upon at the trial of the case, and the court instructed the jury not to consider it.

The defendant in its answer admitted only the alleged description of the sewer passing under the plaintiff's house, and that the sewer was partly covered above the plaintiff's lot. The defendant also contended that it did not increase the flow of water in the sewer beyond its capacity, and therefore did not cause any damage to the plaintiff.

The jury was unable to reach a verdict on the first trial of the case, and on the second trial returned a verdict in favor of the plaintiff on counts one and two for $1,500, the amount sued for. The defendant's amended motion for new trial was denied, and the exception here is to that judgment.

Ed. S. Sell, Jr., Benning M. Grice, Macon, for plain...