Goble v. Louisville & N. R. Co.
| Decision Date | 17 November 1938 |
| Docket Number | 12570. |
| Citation | 200 S.E. 259,187 Ga. 243 |
| Parties | GOBLE v. LOUISVILLE & N. R. CO. |
| Court | Georgia Supreme Court |
Rehearing Denied Dec. 2, 1938.
Error from Superior Court, Gilmer County; J. H. Hawkins, Judge.
Suit by J. R. Goble against the Louisville & Nashville Railroad Company for damages and injunction for obstructing natural flow of water by constructing trestle across a creek with inadequate opening. To review a judgment dismissing the suit plaintiff brings error.
Reversed.
Where landowner sought exemplary damages for railroad's willful trespass upon landowner's rights by maintenance of trestle having inadequate opening after having been notified of its condition and of its causing damages to land landowner's allegation that before date of alleged injury landowner notified railroad in writing of condition of fill and trestle and that railroad failed to remedy condition was not subject to special demurrer that allegation was immaterial and prejudicial.
Syllabus by the Court.
1. A cause of action entitling the plaintiff to recover is set forth in a petition which in substance alleges that the defendant placed a trestle across a creek, leaving an opening inadequate to carry the natural flow of water in times of freshet, with the result that debris, sand, and logs collected on the upper side of the trestle, causing partial obstruction of the flow of the stream; that on a day named, when heavy rains fell, the logs and debris thus collected completely stopped the flow of the water, thereby causing the fill and trestle of the defendant to form a complete dam; that as a result the embankment and fill of the defendant broke away and suddenly released the entire volume of impounded water on the plaintiff's land, rendering it worthless by reason of its being washed away by these floods of water; the petition setting forth the reasonable rental value of the land and its reasonable worth; that the injuries aforesaid were occasioned by the maintenance by the defendant of the fill and embankment in a negligent manner pointed out therein; that the maintenance of said trestle and fill is a continuing nuisance; that the defendant has begun to rebuild the same in the manner as it theretofore existed; and that the recurring damage will give rise to a multiplicity of suits, and will constitute a recurring trespass with resultant irreparable damages; the prayers being for an injunction to prevent the defendant from maintaining its trestle in the manner now undertaken, and for damages to that part of the land rendered totally worthless. These facts make a case for damages; and for injunction.
2. The petition does not show that the plaintiff is estopped from any right to complain, because of allegations to the effect that up to approximately the year 1910 the defendant had maintained a fill and trestle substantially as hereinbefore described; that in the year 1910, or about that time, the trestle was damaged and partially destroyed by a freshet, and the defendant rebuilt the fill and trestle in very much the same manner as it was before 1910; that it was maintained in the same way it was rebuilt until the freshet of April 7, 1938, when the defendant began the reconstruction of the trestle in the same way as it had been for more than twenty-five years.
3. The petition alleging that the damages for which the plaintiff sues occurred on April 7, 1938, and suit being filed on April 14, 1938, the right to recover is not barred by the statute of limitations, notwithstanding the further allegation that the trestle and fill had been maintained in the same manner for more than four years before the filing of the suit.
4. Notwithstanding the allegation that 'Beginning sometime on April 7, 1938, heavy rains fell in the vicinity of said trestle and in the Faucett Creek basin, causing said creek to swell to the extent that great volumes of muddy water, debris, logs, and other obstructions carried by the swollen creek caught across the abutments and supports at the defendant's trestle,' etc., the petition does not show on its face that the freshet was an act of God.
5. It was proper to overrule the plaintiff's demurrer to so much of the answer of the defendant as set up that on April 7, 1938, in the vicinity of Faucett creek basin, and along the watershed of the same, 'there was an unusual, unprecedented downpour of water and rain from the clouds, such as has never been known before or since in the history of the railroad or the county in which it is located,' etc.
6. It was erroneous to overrule the plaintiff's demurrer to so much of the answer as set up that in March, 1887, the defendant's predecessor in title condemned a portion of the land of plaintiff for railroad purposes, and that soon thereafter the railroad was constructed across the land in the same place that defendant is now, and has been, operating its railroad for many years, and that 'ever since the defendant has owned the said railroad properties it has operated its railroad over Faucett creek and along the lands claimed by the defendant, with the same center span over Faucett Creek, and approaches thereto, that were heretofore described in this answer, and is now operating its railroad over the same.'
7. A company which has for twenty-five years maintained a trestle under which a stream flows, and abutments, does not thereby acquire a prescriptive easement to flood lands, unless such flooding has been continuous and uninterrupted for a period sufficient to ripen prescription.
8. The amendment of the petition was allowable against the demurrer on the grounds that (a) it set forth a separate and distinct cause of action, and (b) that it contained averments of fact contradictory to those appearing in the petition as it originally stood.
9. The petition was not subject to any defect pointed out by any of the special grounds of demurrer.
Roscoe Pickett, of Jasper, and Henderson & Spence, of Centon, for plaintiff in error.
Morris & Welsh, of Marietta, Tye, Thomson & Tye, of Atlanta, and A. H. Burtz and Watkins Edwards, both of Ellijay, for defendant in error.
Syllabus OPINION.
Suit for damages and injunction was brought by J. R. Goble against Louisville & Nashville Railroad Company. The defendant demurred to the petition and to the petition as amended; and the plaintiff demurred to portions of the answer. The court dismissed the action on demurrer, and the plaintiff excepted.
1. The plaintiff's right to recover damages, if he proves his case as laid (a brief recital of most of his material allegations is contained in the first headnote), is recognized by an unbroken line of authority from foreign jurisdictions (see 27 R.C.L. 1101, § 37; 67 C.J. 698, § 2), and is supported by a number of rulings from this court which are hereinafter cited on other features of the case, and also by the principle found in the Code, § 105-1407, that the owner of land through which a non-navigable water-course flows is entitled to have the water come to his land in its natural and usual flow, and the obstructing thereof so as to cause it to overflow or injure his land is a trespass. As pointed out by Mr. Chief Justice Russell in Robertson v. Arnold, 182 Ga. 664, 672, 186 S.E. 806, 106 A.L.R. 681, all of our law with regard to the respective rights of the owners of land on non-navigable streams comes from or is based upon the old maxim of Justinian, 'Aqua curret et debet currere in modo quo currere solebat,' which translated is, 'Water runs and it ought to run in the manner in which it was accustomed to run.' Does the petition show on its face a right of the plaintiff to enjoin the defendant? It is alleged that since the defendant's track and trestle and fill were washed away on April 7, 1938, the defendant has begun to rebuild the same across Faucett Creek in the same location, using the same materials, providing the same opening for the creek to flow under, and proposes to continue the maintenance of its track and trestle across the creek as it has done for the past twenty-five years; that the plaintiff owns other valuable lands below the trestle, and if the threatened maintenance of the trestle be carried out these other lands will likewise be washed and flooded, and damages to his lands will recur from year to year, which will give rise to a multiplicity of suits; that such maintenance of the trestle will constitute a constantly recurring trespass on the rights of the plaintiff from time to time; and that the damages already done and threatened, by reason of future acts of defendant's negligence, are irreparable. The plaintiff prays that the defendant be enjoined from erecting and maintaining its trestle in the manner it is now undertaking and threatening to do.
To wrongfully turn water on the lands of another is a nuisance. Code, § 72-101. A suit to enjoin is a recognized remedy for a nuisance. 2 Cooley on Torts, § 316. It is also a trespass. 1 Cooley on Torts, § 165. Our Code declares: 'Equity will not interfere to restrain a trespass, unless the injury shall be irreparable in damages, or the trespasser shall be insolvent, or there shall exist other circumstances which, in the discretion of the court, render the interposition of the writ necessary and proper, among which shall be the avoidance of circuity and multiplicity of actions.' § 55-104. The petition shows that the maintenance of the nuisance had already caused considerable damage to the plaintiff's lands; that the damage increased from year to year; that the opening under the defendant's...
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