Danielly v. Cheeves

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN, J.
• Citation: Danielly v. Cheeves, 94 Ga. 263, 21 S.E. 524 (Ga. 1894)
• Decision Date: 14 August 1894
• Parties: DANIELLY v. CHEEVES.

21 S.E. 524

94 Ga. 263

DANIELLY v. CHEEVES.

Supreme Court of Georgia

August 14, 1894

Syllabus by the Court.

1. A declaration laying damages at $1,000, and alleging that the nuisance complained of rendered the premises almost worthless for cultivation during two specified years, is amendable by adding thereto an allegation that the nuisance rendered the premises totally useless for cultivation, and laying the damage at $3,000. Thus construed, the amendment is consistent with the plan and purpose of the declaration, which was to recover damages with reference to crops for the two specified years, and not to recover permanent or prospective damages. That the amendment called itself a "court" is a mere misnomer; and that the counsel who procured the allowance of the amendment now construed it as not confined to damages relatively to crops for the two years specified in the declaration, but as extending to and comprehending damage to the land for all time after the year 1881, is no reason for reversing the judgment allowing the amendment. If construed as he now contends it should be, it introduced a new cause of action, and should have been disallowed.

2. Properly construed, each and all of the declarations demurred to should be treated as claiming annual damages for successive years, and none of them as proceeding for permanent or prospective damages.

3. A nuisance to the plaintiff's cleared and tillable land (the injury consisting in overflowing or saturating the same with water), although resulting from a cause intended to be perpetually operative, and of a nature so to operate gradually and continuously, created in the year 1878, was actionable in 1884 for damage on account of diminished or suspended fertility occasioned thereby with reference to the crops for the years 1882 and 1883; and the same nuisance having been continued with like effect, was again actionable in 1888 for damage on account of diminished or suspended fertility with reference to the crops for the years 1884 1885, 1886, and 1887; and the same nuisance, having been continued with like effect, was again actionable in 1889 for damage on account of diminished or suspended fertility with reference to the crop for the year 1888. If, however, the effect of the nuisance, at any stage, was to destroy wholly and permanently the fertility of the land, so that abating the nuisance and withdrawing the excess of water occasioned thereby would not restore the land and render it again fertile, the right to maintain successive actions relatively to subsequent years ceased, and a single action and recovery for such destruction could be maintained, and would be final.

4. In adjudicating upon a demurrer to a declaration, or to a series of declarations which have been consolidated for trial, the court cannot look beyond the declarations themselves, so as to take notice of the contents of the declarations filed in a previous action between the same parties, and touching the same nuisance, and damages therefrom, relatively to crops or rents for previous years. This cannot be done, although a previous action be, in one of the declarations demurred to mentioned in these terms: "Petitioner shows that he has already filed his suit for the recovery of damages for the years 1878, 1879, 1880, and 1881, which is now pending in court"; no exhibit of the declaration in that action being appended, nor any leave to refer to it being therein prayed for. Unless all facts necessary to establish the defense of a former recovery for the same cause of action appear on the face of the declaration, this defense is not matter for demurrer, but for plea only.

Error from superior court, Monroe county; J. J. Hunt, Judge.

John A. Danielly brought four separate actions against Thomas J. Cheeves to recover damages for overflowing plaintiff's land. The several actions were consolidated and tried together. From the judgment rendered, plaintiff brings error. Affirmed in part and reversed in part.

C. A. Turner, J. S. Boynton, and Berner & Bloodworth, for plaintiff in error.

Gustin, Guerry & Hall and W. D. Stone, for defendant in error.

LUMPKIN J.

Several actions which had been instituted by Danielly against Cheeves were consolidated in the superior court. This litigation originated from the same cause as that which was the foundation of the lawsuit between these same parties reported...