DeKalb County v. McFarland

• Decision Date: 09 March 1967
• Docket Number: No. 23918,23918
• Citation: 223 Ga. 196,154 S.E.2d 203
• Parties: DeKALB COUNTY v. Martin McFARLAND et al.
• Court: Georgia Supreme Court

Page 203

154 S.E.2d 203

223 Ga. 196

DeKALB COUNTY v. Martin McFARLAND et al.

No. 23918.

Supreme Court of Georgia.

March 9, 1967.

Syllabus by the Court

1. A general demurrer goes to the whole pleading to which it is addressed and should be overruled if any part thereof is good in substance.

2. The plaintiff's petition states a cause of action for legal relief and is sufficient as against a general demurrer.

George P. Dillard, Harbert O. Edwards, Robert E. Mozley, Decatur, for appellant.

Martin McFarland, Murphy, McFarland & Turoff, Atlanta, for appellees.

ALMAND, Presiding Justice.

The sole question raised by this appeal is whether or not the appellee's two count petition seeking legal and equitable relief is subject to the appellant's general demurrer.

In a two count petition with Count 1 against DeKalb County and its Board of County Commissioners and with Count 2 against the county, its commissioners, the City of Decatur and its commissioners, Martin McFarland sought to recover a money judgment for damages done to his improved real estate abutting Midway Road; to enjoin the defendants 'from allowing any waters to be unnaturally diverted from' Midway Road and unnaturally diverted onto the plaintiff's land; and to enjoin the defendants from allowing a continuing nuisance to exist. Plaintiff alleged that he is the owner of the improved property abutting Midway Road, a public road, with the portion complained of being partially within the confines of DeKalb County and partially within the City of Decatur and that within four years preceding the filing of the suit, 'DeKalb County, through its governing authorities, constructed said spillway on the north side of Midway Road, a distance of thirty-six feet easterly from plaintiff's property. That said spillway is a width of approximately four and one-half feet wide. That the spillway is so constructed that it goes downhill and is designed to empty unnaturally diverted waters from Midway Road into a ditch along a frontal portion of plaintiff's lot. That said ditch goes underneath plaintiff's concrete driveway which leads from his carport, and then said ditch proceeds in a westerly direction across the frontal portion of plaintiff's lot. That as the said ditch continues along the frontal portion of the lot, the same then gradually spreads out into an eroded area caused by said diverted waters on plaintiff's front yard and leads into Shoal Creek which flood waters unlawfully traverse plaintiff's lot.

'Plaintiff shows, on information and belief, that the County of DeKalb and those sued herein, in their official capacities, caused, through their agents and servants, said spillway to be constructed so that all of the rain and other waste waters rolling downhill on Midway Road from east to west dumps into said spillway, then runs the course of said ditch until the same reaches plaintiff's concrete driveway. That all of said street waste waters channeled on plaintiff's lot then with moderate to heavy rain, forms a hydraulic jump of some five to six feet high when it hits plaintiff's concrete driveway. That when the water at this point jumps up some five or six feet high at plaintiff's driveway, the same then spreads out across plaintiff's driveway, goes underneath plaintiff's driveway and then spills down into plaintiff's driveway to the point that the said waste waters and debris floods plaintiff's driveway and carport to such an extent that generally the carport is flooded to a height of two to four feet deep in water, resultant of a moderate to heavy rain.

'That the contaminated filthy surface waters and waste directed on plaintiff's land through said spillway and ditch then proceed to flow in a westerly direction over the frontal portion of plaintiff's lot. That this has caused and continues to cause serious erosion and loss of land which spreads out a distance of twenty to forty feet and to a depth of one to five feet. That this causes plaintiff's property to become a dumping ground for the filthy surface waters and waste from Midway Road. That the same floods the frontal portion of said lot. That this is a continuing nuisance.

'Plaintiff shows that the said surface waters that fall on Midway Road from the eastern top of the hill flow in a westerly direction downhill for one-third of a mile, then said waters enter said ill-designed and constructed spillway, then flow on to plaintiff's land, causing the same to be flooded dangerously some one to three feet across the frontal portion of said lot, and causes unsightly debris and trash to be brought upon plaintiff's land and has caused his lands to become eroded. That this constitutes a continuing nuisance.'

Plaintiff also alleged that the county had constructed a ditch on the south side of Midway Road and culvert under the road, causing surface water to flow over and under the road flooding his property. Plaintiff enumerated specific days within the twelve months preceding the filing of his claim in which his land had been damaged by flood waters from ordinary rainfalls. Plaintiff contended the county had violated his rights under Art. I Sec. III Par. I of the Georgia Constitution in that it had damaged his land and...