Gabbett v. City of Atlanta

• Court: Georgia Supreme Court
• Writing for the Court: ATKINSON, J.
• Citation: Gabbett v. City of Atlanta, 137 Ga. 180, 73 S.E. 372 (Ga. 1911)
• Decision Date: 13 December 1911
• Parties: GABBETT v. CITY OF ATLANTA.

73 S.E. 372

137 Ga. 180

GABBETT v. CITY OF ATLANTA.

Supreme Court of Georgia

December 13, 1911

Syllabus by the Court.

The petition, properly construed, was an action for damages arising from a continuing nuisance.

(a) Although a suit for the creation of a nuisance may be barred by the statute of limitations, yet if the nuisance be of a continuing character, which can and should be abated, suit may be brought for damages arising from its maintenance.

(b) In an action for the maintenance of a continuing nuisance damages may be recovered resulting from such maintenance which accrued at any time within the period prescribed in the statute of limitations before the institution of the suit.

(c) In such an action the fact that the petition may allege damages some of which are barred by the statute of limitation and others not, will not render the petition demurrable as to those which are not barred.

The amendment did not set forth a different cause of action from that alleged in the petition, and it was the right of the plaintiff upon election to amend.

The special grounds of demurrer were not ruled on in the trial court, and will not be considered here.

Questions argued in the brief of counsel, which are not made by the record, will not be considered.

(Additional Syllabus by Editorial Staff.)

Where the original petition for the maintenance of a continuing nuisance was sufficient as against a demurrer without amendment, a proposed amendment, alleging as the measure of damages the value of land affected for rent, and claiming a less amount than specified in the original petition, did not set forth a new cause of action.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by Sarah E. Gabbett against the City of Atlanta. Judgment for defendant, and plaintiff brings error. Reversed.

W. R Hammond, for plaintiff in error.

J. L. Mayson and W. D. Ellis, Jr., for defendant in error.

ATKINSON J.

Sarah E. Gabbett instituted suit for damages against the city of Atlanta. The original petition alleged: That plaintiff owned described land in that city, through which the municipality constructed and maintained certain sewers as a part of the sewerage system of the city. "and in times of rain, which frequently occur, and especially of heavy rains, which are not infrequent, said sewers become filled with water and sewage, and become strained and burst, and overflow your petitioner's said land with water and sewage filth, so that the same is rendered unfit for cultivation or pasturage, whereby your petitioner is deprived of the profit from said land to which she is entitled and which she would otherwise receive. Said land is wholly and totally unfit for cultivation or pasturage, or for any useful or profitable purpose whatever, caused by said repeated overflows and the deposit of filth upon the same. And your petitioner avers that said conditions have existed for more than 10 years, and that said land had become permanently unsuited for cultivation or pasturage, or for any useful or profitable purpose whatever." Also: "Any vegetable crops your petitioner might raise upon said land, if the same could be raised at all on account of the repeated overflows of the same, and the grasses on said land, would be and are totally unfit for use, because of the poisonous sewage matter that becomes deposited on the same from the overflows of said lands, as herein set forth; and your petitioner avers that she cannot obtain cows for pasturage, or rent said lands for market garden purposes, for that reason." Also: "Petitioner avers that she has suffered injury and damage to her said land, by reason of said defective sewerage conditions, and by reason of the facts herein set forth, in the sum of $5,000; and she prays for the recovery of said amount." Plaintiff's written ante litem demand, which was presented to the city, was attached to and made a part of the petition. In such demand it was alleged that for reasons as above indicated the property was "rendered unproductive and valueless" to plaintiff, to her damage in the sum of $500 a year since 1893. After filing her petition, the plaintiff sought to amend by striking portions of it and inserting other allegations, so that the damages claimed should be for the rental value at $500 per year for the four years next preceding the institution of the suit, and praying recovery of $3,000.

To the petition as amended the defendant demurred as follows "(1) The declaration as amended...