Farkas v. Towns

• Decision Date: 29 November 1897
• Citation: 29 S.E. 700,103 Ga. 150
• Parties: FARKAS v. TOWNS et al.
• Court: Georgia Supreme Court

29 S.E. 700

103 Ga. 150

FARKAS v. TOWNS et al.

Supreme Court of Georgia

November 29, 1897

Syllabus by the Court.

1. If an owner of land by raising its surface diverts the natural flowage of surface water, and causes it to flow upon and injure adjacent land and a building thereon, he is liable in damages to the owner of the property thus injured. The latter would, under such circumstances, be entitled to compensation from the wrongdoer for any diminution in the market value of the property thus injured; and, even if the wrongful act caused an increase in such market value, the wrongdoer would nevertheless be liable for the actual damages resulting from injuries to the building, and from a diminution in the value of the premises for use. While in such case there could be no recovery for loss in market value, if the same was in fact increased, the amount of the increase could not be set off against such actual damages, so as to prevent a recovery for the same.

2. The charge complained of, though in some respects subject to criticism, was substantially in accord with the law as above laid down, and there was sufficient evidence to warrant the verdict rendered.

Error from superior court, Dougherty county; W. N. Spence, Judge.

Action by A. D. Towns and others against Sam Farkas. Verdict for plaintiffs, and defendant brings error. Affirmed.

Jesse W. Walters, for plaintiff in error.

E. R Jones and W. T. Jones, for defendants in error.

FISH J.

1. In the case of Goldsmith v. Elsas, 53 Ga. 186, it was decided that, "where two city lots adjoin, the lower lot owes a servitude to the higher, so far as to receive the water which naturally runs from it, provided the owner of the latter has done no act to increase such flow by artificial means." This is in accordance with the rule of the civil law. By the civil law the right of drainage of surface water as between owners of adjacent lands of different elevations is governed by the law of nature. The owner of land which relatively to that of an adjoining proprietor, is the lower estate, is bound to receive the surface waters which naturally flow from the upper estate, provided the industry of man has not created or increased the servitude. And if by raising an embankment upon his premises, or by other means, he expels surface water from his own land, and causes it to flow back upon that of the upper proprietor, or so obstructs the natural flow of such water as to prevent its escaping from the dominant estate, he is liable to such neighboring proprietor for any damages resulting to the latter in consequence of his act. There are some slight modifications of this rule, in the interest of agriculture, which it is not necessary to consider here. The rule of the common law is different, and is stated by the court in Hoyt v. City of Hudson, 27 Wis. 659, in the following language: "The doctrine of the common law is that there exists no such natural easement or servitude in favor of the owner of the superior or higher ground or fields, as to mere surface water, or such as falls or accumulates by rains or melting snow, and that the proprietor of the inferior or lower tenement or estate may, if he choose, lawfully obstruct or hinder the natural flow of such water thereon, and in so doing may turn the same back upon, or off, onto, or over, the lands of other proprietors, without liability for injuries ensuing from such obstruction or diversion." The decisions of the courts of this country upon the question are conflicting, owing to the fact that some of them follow the rule of the common law, and others accept that of the civil law. In the case of Mayor, etc., of City of Albany v. Sikes, 94 Ga. 30, 20 S.E. 257, this court, after a careful consideration of these two conflicting rules, decided to follow, "as the true law of this state, the rule of the civil law; it being, of the two, the sounder, the more consistent with natural justice and right, and the more in harmony with our system of law and the general conditions of the commonwealth of this state." Such, then, being the law of this state, when Farkas, who, relatively to the plaintiffs, owned the lower and servient estate, filled up the natural depression or basin which existed upon his premises, and raised the level of his land above that of the plaintiffs' lot, and by this reversal of the order of nature...