City of Macon v. Roy

• Decision Date: 16 November 1925
• Docket Number: 16239.
• Citation: 130 S.E. 700,34 Ga.App. 603
• Parties: CITY OF MACON v. ROY.
• Court: Georgia Court of Appeals

130 S.E. 700

34 Ga.App. 603

CITY OF MACON v. ROY.

No. 16239.

Court of Appeals of Georgia, Second Division

November 16, 1925

Syllabus by the Court.

The motion for new trial should have been granted for the reason assigned in the opinion (division 5, subsection b).

Additional Syllabus by Editorial Staff.

Where nuisance in fact exists in a public street, and the city does not abate it, city will be deemed to be an active tort-feasor.

Verdict for plaintiff for damages by water collected by sewer and cast on his lot was not without supporting evidence because there was no evidence by which jury could apportion respective portions of water to their several sources or causes.

Maintenance by municipality of sanitary drainage sewers is an exercise of a governmental function.

While municipal corporations have certain sovereign governmental powers which cannot be superintended by courts, yet in exercise of such powers they have no right to create and maintain a nuisance hurtful to private citizens.

As action for damage for maintenance of nuisance is not planted on law of negligence, charge calling attention to certain acts and facts as constituting negligence held not invasive of province of the jury.

Negligence is not a necessary ingredient of a cause of action growing out of a nuisance.

Where plaintiff contended that defendant was maintaining a nuisance which was hurtful to him, which was clearly presented in general charge, charge that if city caused water to flow on plaintiff's property which did not flow on it prior to construction of sewer, and if it constituted an abateable nuisance which defendant refused to abate, then plaintiff was entitled to recover, held not erroneous as eliminating all other issues from case.

In case of permanent nuisance, measure of damages is diminution in market value of property by reason of nuisance, while in case of abateable nuisance it is actual damage which may have already accrued within limitations and up to filing of petition.

Error from City Court of Macon; R. C. Jordan, Judge.

Action by Charles Roy against the City of Macon and another. Judgment for plaintiff, and defendant named brings error. Reversed.

Charles Roy brought his action against the city of Macon and the Vineville Improvement Company, in which he sought to recover damages to his house and lot on Roy street, in said city, by the acts of the city of Macon and the Vineville Improvement Company. It was alleged that they entered into a conspiracy that in the prosecution of such conspiracy certain streets were laid out, curbs and gutters placed, and a great volume of water accumulated into a sewer opening into Roy street, in front of plaintiff's lot; that by so doing the natural flowage of the surface water was diverted and caused to flow in and upon plaintiff's property, to his injury and damage. A nonsuit was granted as to the Vineville Improvement Company. At the conclusion of the evidence and the charge of the court, the jury brought a verdict in favor of the plaintiff and against the city for $1,000. A motion for new trial upon both general and special grounds was filed by the city, the same was overruled, and the judgment overruling the motion is here for review.

Grady Gillon and H. D. Russell, both of Macon, for plaintiff in error.

H. F Strohecker and A. W. Graves, both of Macon, for defendant in error.

JENKINS P.J. (after stating the facts as above).

1, 2. The first ground of the amendment to the motion for new trial complained that the verdict was without evidence to support it, for the reason that it did not appear that the city of Macon ever in fact constructed the sewer complained of, or ratified its construction. The evidence upon this point is meager, to say the least; but, however that may be, we are of the opinion that it was not necessary for the plaintiff, in an action for damages based upon the alleged maintenance of a continuing nuisance, to show that the city actually constructed or ratified the construction of the sewer. The petition showed that the city had maintained the alleged nuisance for about two years, and was continuing to do so, and that it failed to abate the same. The city having sole supervision and control over its streets, and being vested with the sole power and authority to abate such an alleged nuisance, it follows that where such a nuisance in fact exists in a public street, and the city does not abate the same, it will be deemed to be an active tort-feasor. See Holmes v. City of Atlanta, 113 Ga. 961, 39 S.E. 458; Mayor and Council of Waycross v. Houk, 113 Ga. 963, 39 S.E. 577. Accordingly, this ground of the motion for new trial as well as the exception to the charge set out in the second ground of the amendment to the motion for a new trial, was without merit.

3. The third ground of the amendment to the motion for a new trial complained that the verdict was without evidence to support it, because the evidence of the plaintiff showed that there were a number of causes contributing to the flow of water upon plaintiff's property; that there was no evidence by which the jury could apportion the respective portions of water to their several causes, so as to ascertain what quantity was brought down by the sewer. It appeared from the evidence that all of the water about which plaintiff complained, irrespective of how it was collected, was accumulated into the sewer complained of, and delivered by it upon his property. The issues raised by the pleadings and the evidence did not require the jury to ascertain the amounts arising from the different causes; what the plaintiff was complaining of was the fact that the sewer opening in the street in front of his property was bringing an unnatural, excessive, and damaging volume of water upon his property. The complaint did not relate to the several sources of the augmented supply, but its destination. He averred that after being thus diverted and collected by the sewers it ought not to have been delivered on his property to his injury and damage. There was no merit in this ground.

4. Exception is taken to the following part of the charge of the court:

"I charge you * * * that if it has been shown by a preponderance of the evidence that the defendant has, by constructing a sewer, caused water to flow upon the premises of the plaintiff that it did not flow upon prior to the

...