DeKalb County v. McFarland

• Decision Date: 28 January 1974
• Docket Number: No. 28164,28164
• Citation: 203 S.E.2d 495,231 Ga. 649
• Parties: DeKALB COUNTY et al. v. Martin McFARLAND.
• Court: Georgia Supreme Court

Page 495

203 S.E.2d 495

231 Ga. 649

DeKALB COUNTY et al. v. Martin McFARLAND.

No. 28164.

Supreme Court of Georgia.

Jan. 28, 1974.

Rehearing Denied Feb. 6, 1974.

Syllabus by the Court

1. Enumerations of error 1, 2 and 3 complaining of the overruling of the appellant's motion for new trial, are not meritorious.

2. Enumerations 4, 5 and 6 directed to a portion of Count 1 are not valid.

3. Enumeration 7, contending that a portion of the judgment does not follow the verdict, is not maintainable.

George P. Dillard, Decatur, for appellants.

Peek, Whaley & Haldi, Glenville Haldi, Atlanta, William E. Zachary, Decatur, for appellee.

GRICE, Presiding Justice.

This appeal is by a county from a judgment against it in favor of a property owner for the flooding of his property.

The appeal resulted from a suit filed in the Superior Court of DeKalb County by Martin McFarland against that county, its commissioners, the City of Decatur and its commissioners. During the trial the City of Decatur and its commissioners were eliminated from the suit. The jury returned a verdict in favor of the plaintiff for $1,000 special damages, $4,000 attorney fees, and injunctive relief to be referred to hereinafter.

Enumerated as error are the verdict, judgment and overruling of the amended motion for new trial filed by DeKalb County.

For prior appearances see DeKalb County v. McFarland, 223 Ga. 196, 154 S.E.2d 203; McFarland v. DeKalb County, 224 Ga. 618, 163 S.E.2d 827; and DeKalb County v. McFarland, 226 Ga. 321, 175 S.E.2d 20.

The allegations of the complaint involved in this appeal are those recited in DeKalb County v. McFarland, 223 Ga. 196, 154 S.E.2d 203, supra, except for subsequent amendments. Therefore it is not necessary to recount the allegations of the complaint.

The essential allegations of the complaint were denied by the county defendants. They claimed that they had acquired the right to discharge the water by dedication, that the plaintiff was guilty of laches, and they asserted other contentions which need not be set forth here.

The verdict as finally rendered and the judgment in material part are as follows: 'We the jury find on Count No. 1 for the Plaintiff and against the Defendant in the amount of $1,000 for specific damages. We further find on Count No. 1 for the Plaintiff in the amount of $4,000 for attorney fees. We further find that on Count No. 1 the defendant has created a continuing nuisance in causing surface and waste waters to flow onto the plaintiff's property through the spillway and stormdrain on Midway Road. We request that an injunction be issued against the defendant to eliminate said nuisance and to take whatever action necessary to divert the water from the plaintiff's property.

'We find on Count No. 2 for the Plaintiff. We further find that on Count No. 2 the defendant has created a continuing nuisance in not maintaining the culvert at Midway Road and Shoal Creek. We request that an injunction be issued against the defendant to eliminate said nuisance by taking whatever action necessary to maintain the culvert and prevent if from becoming blocked.'

The following judgment was rendered: 'The above styled case having regularly come on for a trial by jury, and the jury having returned a verdict for the plaintiff, it is hereby ordered, adjudged, and decreed as follows: (a) The plaintiff shall have and recover judgment against the defendant, DeKalb County, in the principal sum of one thousand ($1,000) dollars general and special damages; (b) The plaintiff shall have and recover judgment against the defendant, DeKalb County, in the principal sum of Four Thousand ($4,000) dollars attorneys fees; (c) The defendant, DeKalb County, is permanently enjoined from diverting any surface water from Midway Road onto the property of the plaintiff commonly known as 184 Midway Road; (d) The defendant, DeKalb County, is permanently enjoined from allowing water flowing in Shoal Creek to be backed up onto the property of the plaintiff commonly known as 184 Midway Road by the culvert running under Midway Road . . .'

1. We deal first with the enumeration of error complaining of the overruling of general grounds 1, 2 and 3 of the County's motion for new trial.

( a) While the evidence was conflicting in some particulars it amply supported the allegations of the complaint as to the flooding of the plaintiff's property. There was evidence as to the water's location, quantity, frequency, velocity and its results. This evidence was sufficient to prove the plaintiff's case as alleged in DeKalb County v. McFarland, 223 Ga. 196, 154 S.E.2d 203, supra.

Even if the County had previously acquired the right of dedication to discharge surface water upon the property of the plaintiff's predecessor in title, it does not now have the right to increase such water to the destruction of the plaintiff's property. Cf. McFarland v. DeKalb County, 224 Ga. 618, 163 S.E.2d 827, supra. Here there was evidence of such increase.

The evidence authorized the recovery of specific damages and injunctive relief.

( b) Also we conclude that the evidence supported the verdict and judgment as to attorney fees. Here one of the issues was whether the County showed bad faith in failing to abate the nuisance, thereafter maintaining a continuing nuisance and trespass especially injurious to the plaintiff, after requests to cease and desist. Every intentional tort invokes a species of bad faith that entitles a person wronged to recover the expenses of litigation including attorney fees.

In our view this feature of the appeal is controlled by City of Dublin v. Hobbs, 218 Ga. 108(5), 126 S.E.2d 655.

2. We next consider the issues made by special grounds 4 through 53 of the County's amended motion for new trial.

( a) Special ground 4 contends that the trial court erred in admitting a map into evidence over the objections that it had not been proved as accurate, by showing that it was prepared by an engineer with knowledge of the facts and that it portrays the area it purports to show.

Admission of this document is not cause for reversal.

It purports to show that it is a map of the City of Decatur. Its accuracy was not disputed at any stage of the trial. Its admission could not have harmed the County.

(b) Special grounds 5, 6, 7 and 8 relate to testimony of the head of a real estate company as to value of the plaintiff's property. This witness had inspected the property the previous day. The court, over the County's objection, permitted the plaintiff's counsel to ask the witness if he had an opinion as to the rental value of the property if there was no water damage. The witness replied affirmatively and provided a specific range of rental values. Also, this witness was asked if he had an opinion as to whether an F.H.A. loan could be obtained on this property and over objection he answered in the negative. The witness was further asked if he had formed an opinion as to the value of the property on that date and the County objected. Whereupon the witness said that he had, and gave a specific figure which he stated was the value without the water problem.

The County's objections to these questions and motion to strike this testimony were overruled. It asserts error thereupon, contending that the questions propounded were based upon hypothetical situations not supported by evidence and that a proper foundation had not been laid or facts shown upon which the opinion of the expert witness was based.

In our view, none of these questions and answers is subject to the criticism lodged against them. This was opinion evidence which was proper for a determination of depreciation in value in awarding damages and the trial court so charged. Code §§ 38-1708, 38-1709, 38-1710; Swift v. Broyles, 115 Ga. 885(2), 42 S.E. 277.

( c) Special ground 9 relates to the County's question to this witness on cross examination relating to whether such damage would have existed then if the creek had flooded when a named witness was a boy. This was not an abridgement of the right of cross examination. The question was argumentative and therefore correctly prohibited.

( d) Special grounds 10, 11 and 12 concern the plaintiff being asked upon direct examination to 'describe Midway Road,' and instead reading a notice to produce served upon the County and making comments relating to the alleged failure to produce, all in the presence of the jury. The County insists that this was error and that its motion for mistrial should have been granted. We do not believe that what occurred here required a mistrial. The court property instructed the jury on what had occurred and admonished the plaintiff as to his duties as a witness.

( c) Special ground 13 asserts error in that during the direct examination of the plaintiff he was asked whether he had owned the property continuously since 1966. Objection was made that the original deed would be the highest and best evidence of what was owned, which objection was overruled. This objection was not valid. An original deed is not necessarily the highest and best evidence of this. This feature was not an issue in the trial. Even so, the denial here is no cause for reversal.

( f) Special grounds 14, 15, 16 and 17 deal with questions and answers in testimony as to damage and repairs to the property of the plaintiff. Whether these matters were related to any act or omission of the County was for the jury to determine. There was ample evidence that they were so related, and therefore no harm resulted from the allowance of the questions and answers so as to require a reversal.

( g) Special ground 18 urges that during the direct examination of the plaintiff he was asked the question: 'Do you have an opinion as to whether or not the flow of water to your property has increased during the time that you have owned this property?'; that he answered, 'I do'; that objection was made that the proper ground work had not been laid to qualify him...