Clarke County School Dist. v. Madden, 37639

• Decision Date: 19 May 1959
• Docket Number: No. 2,No. 37639,37639,2
• Citation: 99 Ga.App. 670,110 S.E.2d 47
• Parties: CLARKE COUNTY SCHOOL DISTRICT v. Will MADDEN et al
• Court: Georgia Court of Appeals

Page 47

110 S.E.2d 47

99 Ga.App. 670

CLARKE COUNTY SCHOOL DISTRICT v. Will MADDEN et al.

No. 37639.

Court of Appeals of Georgia, Division No. 2.

May 19, 1959.

Rehearing Denied June 8, 1959.

Syllabus by the Court

1. The petition as amended stated a cause of action for damages resulting to the plaintiffs from excessive run-off of water and the washing of mud and silt onto the plaintiffs' properties as a consequence of the improvement of the defendant's property, and the trial court did not err in overruling the general demurrers to the petition.

(a) There being no special demurrer filed, the general demurrers did not raise any question as to the correctness of the measure of damages sought to be recovered.

2. The admission in evidence of the diagrams prepared by one of the plaintiffs was not error where he testified as to the correctness thereof.

(a) The fact that the plaintiff who prepared the diagrams, purporting to show the before and after grading east-west and north-south profiles of the defendant's property, testified that they were drawn from memory and not from data obtained by actual measurements of elevations of the defendant's property did not affect their admissibility, but such testimony merely went to the weight and credit which the jury gave them.

3. The portions of the charge complained of in special grounds 2 and 3 of the motion for a new trial, as set out in the corresponding division of the opinion were confusing and misleading to the jury in that they injected into the case an issue neither made by the pleadings nor the evidence, and were, therefore, harmful error.

4. In a suit to recover compensation for the damaging of real property as the consequence of a public improvement, instructions as to the measure of damages and relevant to a tort action are not appropriate.

5. In view of the ruling made in the first division of the opinion, the request to charge which was refused, as complained of in special ground 6 of the motion for a new trial, did not state a wholly correct proposition of law, and the trial court did not err in refusing it.

6. The evidence did not demand a verdict for the defendant, and the trial court did not err in refusing to direct a verdict and in thereafter denying the motion for a judgment notwithstanding the verdict.

Will Madden, Knox Brackett, Jr., Vince Dieball and H. R. Holland brought suit against the Clarke County School District to recover damages which they allegedly sustained as the result of the acts of the defendant and its agents in grading its property so as to alter the flow of water therefrom onto the properties of the plaintiffs. In their amended petition the petitioners alleged that they owned homes situated on the southerly side of a private road known as Alpine Way, located in Clarke County, Georgia, which road runs in an easterly direction from Alps Road; that the defendant is the owner of a tract of land on which is located the Alps Road School, the southerly side of which runs roughly parallel to Alpine Way and some 200 feet north thereof; that lying between the defendant's property and Alpine Way are vacant lots; that prior to September 1, 1957, the natural terrain of the school ground caused most of the surface water to drain either easterly or westerly therefrom with a negligible amount draining in a southerly direction; that on or about September 1, 1957, the defendant caused the property to be graded and leveled off so as to result in a change in the natural drainage, which caused larger quantities of water than previously to drain in a southerly direction across the vacant lots, Alpine Way, and across the lots of the plaintiffs in such a manner as to impose upon the properties an unprecedented easement in violation of the plaintiffs' constitutional rights guaranteed by Art. I, Sect. 3, Par. 1 of the Constitution of the State of Georgia, and damaging plaintiffs' properties thereby without just and adequate compensation having been first paid; that said water deposited over four inches of mud on the lawn and grounds of Will Madden during the ten months preceding the filing of this suit; that as the results thereof, the said Madden has been forced to have his land re-landscaped and replanted with grass and has been forced to have a ditch dug through his property to alleviate some of the damage, all at a cost of $500; that the plaintiff Dieball had had to replace portions of his lawn at a cost of $80 as a result of said improper drainage; and the plaintiff Brackett has had to replace portions of his lawn at a cost of $40; that the petitioners collectively paid for the construction of the said private road which has been damaged by having gullies and washouts form therein as a result of the said drainage, which damage has been to the extent of $500, and the petitioners prayed that they be awarded damages in the respective amounts which each had expended in remedying the alleged damage, and that they by awarded collective damage in the amount of $500. There was a prayer that the defendant be temporarily and permanently enjoined 'from maintaining said nuisance,' but it does not appear from the record that the injunction was granted and there is no exception or question here as to that feature of the case. The defendant filed general demurrers to the petition and one special demurrer contending that there was a misjoinder of parties and of cause of action. The trial court overruled the demurrers, and the plaintiffs thereafter amended their petition by merely adding thereto the allegations, the substance of which we have set out in italics above, the defendant renewed its general demurrers and the court overruled them and the defendant assigns error on the orders overruling its demurrers. The case proceeded to trial and at the conclusion of all the evidence the defendant made a motion for a directed verdict, which motion was overruled, and the jury thereafter returned a verdict for the plaintiffs in the amounts sued for except as to the amount sued for jointly for the damage to the street as to which they returned a verdict in the amount of $250. Thereafter, the defendants made a motion for a judgment n. o. v. and a motion for a new trial on the general grounds and on six special grounds, which motions were overruled and these rulings are also assigned as error.

Erwin, Nix, Birchmore & Epting, Eugene A. Epting, Athens, for plaintiff in error.

C. O. Baker, Jim Hudson, Athens, for defendants in error.

CARLISLE, Judge.

1. A general demurrer denies the right of the plaintiff to the relief sought while admitting all properly pleaded allegations in the petition to be true. Code, § 81-304. While a petition on general demurrer must be construed most strongly against the pleader, yet the test as to whether a petition can withstand a general demurrer is, can the defendant admit all of the properly pleaded allegations therein and still escape liability. Harvey v. Zell, 87 Ga.App. 280, 284(1-d), 73 S.E.2d 605. 'A cause of action is made up of two elements; namely, a duty and a breach of it' (Bell v. Fitz, 84 Ga.App. 220, 225, 66 S.E.2d 108, 110); and, 'Where a petition sets out a cause of action under any legal theory, it is good as against a general demurrer.' Hall v. John Hancock Mutual Life Ins. Co., 50 Ga.App. 625(2), 179 S.E. 183, 184; Yopp v. Johnson, 51 Ga.App. 925(2), 181 S.E. 596. As against a general demurrer general allegations are sufficient. Morgan v. Limbaugh, 75 Ga.App. 663, 44 S.E.2d 394.

In the instant case, the defendant Clarke County School District was created by the act approved March 7, 1955 (Ga.L.1955, p. 3057 et seq.), and by that act its powers and rights and liabilities were defined. By Section 10 it was given the right to sue and be sued, and to acquire property by eminent domain together with all the remedies necessary to execute such powers provided under any of the existing laws of the State. Ga.L.1955, p. 3067. Insofar as the allegations of the plaintiffs' petition are drawn in question by the general demurrer, they show an existing property right which has been damaged by the acts of the defendant, and these allegations bring the case within the purview of the following broad general propositions of law: 'For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary frame the other' (Code, § 3-105); 'and for every injury done by another to person or property, the law gives a right to recover, and a remedy to enforce it. Such a right is a chose in action, and such a remedy is an action or suit at law' (Code, § 85-1802); 'Private property shall not be taken or damaged, for public purposes, without just and adequate compensation being first paid.' Constitution of the State of Georgia, Art. I, Sect. 3, Par. 1 (Code, Ann., § 2-301).

We thus have in the instant case a constitutional right and alleged violation thereof by a political subdivision of the State declared by statute to be subject to suit, the plaintiffs suing in a court of competent jurisdiction (Code, § 24-2615(1), and provisions for an appropriate remedy, namely, the payment of compensation for the damage done. The nature of the action here is to be determined by the intrinsic contents of the petition, the recitals of fact therein, the nature of the wrong sought to be remedied, and the kind of relief sought. Price v. Fidelity Trust Co., 74 Ga.App. 836(1), 41 S.E.2d 614. Properly construed, the petition in this case seeks only the recovery of compensation for property damaged by a political subdivision of the State in consequence of improvements made to its property by reason of which the plaintiffs allege they suffered damages in violation of the constitutional provision above quoted. It is not a suit in tort or for damages flowing merely from an improper or defective or negligent construction or maintenance of a public improvement. Neither is the petition subject to the construction that it is for...