City of Rome v. Turk

• Decision Date: 11 September 1975
• Docket Number: No. 29870,29870
• Citation: 235 Ga. 223,219 S.E.2d 97
• Parties: CITY OF ROME, Georgia v. Adolph TURK et al.
• Court: Georgia Supreme Court

Page 97

219 S.E.2d 97

235 Ga. 223

CITY OF ROME, Georgia v. Adolph TURK et al.

No. 29870.

Supreme Court of Georgia.

Sept. 11, 1975.

Rehearing Denied Sept. 23, 1975.

Brinson, Askew & Berry, Robert M. Brinson, Rome, for appellant.

Robert, J. Evans, Rome, for appellees.

NICHOLS, Chief Justice.

This case is here on application for writ of certiorari (Turk v. City of Rome, 133 Ga.App. 886, 212 S.E.2d 459). The Court of Appeals reversed the grant of summary judgment in favor of the defendant city.

This court granted certiorari on the questions of (a) whether negligence was the only theory on which the plaintiffs proceeded in the trial court; and (b) whether there is an issue of fact to be tried on the theory of nuisance.

1. The plaintiffs' petition alleged that the city dug a drainage ditch from unimproved property adjacent to their property 'onto plaintiffs' property without plaintiffs' prior knowledge and consent.' It is also alleged that the city 'committed wilful and wanton acts of trespass upon plaintiffs' property by cutting down a portion of plaintiffs' hedge . . . and also destroyed part of plaintiff's wire fence,' causing a stated amount of damage. It is also alleged in the petition that because of the negligent manner in which the city proceeded in constructing the drainage ditch, water overflowed on their property, damaging same in stated particulars.

The plaintiffs proceeded in the trial court only on their petition and the answers to interrogatories propounded by the defendant city. In their argument to the Court of Appeals, they cited cases allowing recovery against a municipality for damages caused by overflowing drainage sewers. These cases discuss the negligent, improper and unskilful manner in which the work was accomplished and recovery was allowed on the theory of nuisance.

The power to construct and maintain a sewer and drainage system is a governmental function. City Council of Augusta v. Williams,206 Ga. 558, 67 S.E.2d 593. In Ingram v. City of Acworth, 90 Ga.App. 719, 720, 84 S.E.2d 99, 101, the Court of Appeals said: 'In Cannon v. City of Macon, 81 Ga.App. 310, 321 (58 S.E.2d 563), an action against a municipality for the construction and operation of a storm sewer in such manner as to damage the plaintiff's property, the following was cited with approval by the court as against the contention that the municipality was not liable for a governmental function: "It was . . . said in . . . (Smith v. Atlanta, 75 Ga. 110): 'This sewer was and is under the control of the city; if it be a nuisance and the city has not abated it, no one else could; not having abated it, the city may be said to have maintained it and kept it up, and it is thereby a continuing nuisance, for the maintenance of which the city is liable." (Bass Canning Co. v. MacDougald Construction Co., 174 Ga. 222, 224, 162 S.E. 687). It was in this case that the Supreme Court reversed the case of MacDougald Construction Co. v. Bass Canning Co., 42 Ga.App. 533, 156 S.E. 628, which cites City Council of Augusta v. Lamar, 37 Ga.App. 418, 140 S.E. 763. 'Manifestly, power to construct a system of sewers and drains does not authorize the municipal corporation to create a nuisance. In such a case the city cannot escape liability on the ground that it is engaged in the performance of a governmental function.' 4 McQuillin, Municipal Corporations (2d Ed., revised), p. 412 § 1557; Delta Air Corporation v. Kersey, 193 Ga. 862, 870, 20 S.E.2d 245. It follows that the court erred in sustaining the general demurrer to this count of the petition. " Thus, under the old demurrer practice where facts are alleged in the petition sufficient to draw the conclusion that a nuisance had been created, it was sufficient to withstand a general demurrer.

' A nuisance is anything that works hurt, inconvenience or damage to another; and the fact that the act done may...