Holbrook v. Town Of Norcross

• Decision Date: 12 November 1904
• Citation: 121 Ga. 319,48 S.E. 922
• Parties: HOLBROOK et al. v. TOWN OF NORCROSS.
• Court: Georgia Supreme Court

48 S.E. 922

121 Ga. 319

HOLBROOK et al.

v.TOWN OF NORCROSS.

Supreme Court of Georgia.

Nov. 12, 1904.

PLEADING—PETITION—CONSTRUCTION—TORTS OF CITY—FLOODING LANDS—RIGHTS OF OWNER.

1. When a count in a petition is equivocal in its terms and capable of two constructions, one of which would let in a defense and the other would not, that construction will be adopted which is most favorable to the defendant, and which will permit the defense to be made.

¶ 1. See Pleading, vol. 38, Cent Dig. § 66.

2. The act of a municipality in improperly causing water to flow upon and damage property of an individual located in the town is a positive tort, and the owner is not bound to do anything to avoid the consequences resulting from such an invasion of his property rights.

(Syllabus by the Court.)

Error from Superior Court, Gwinnett County; R. B. Russell, Judge.

Action by W. T. Holbrook and others against the town of Norcross. Judgment for defendant, and plaintiffs bring error. Reversed.

Plaintiffs, who were the owners of a lot in the town of Norcross, brought an action against the town for damages to their property. The petition contained two counts. The first count was, in substance, as follows; During the year 1892 the town caused the water that theretofore accumulated on the main street of the town in a basin south and across the Southern Railway Company's line through the town from plaintiff's property, which had naturally theretofore run off in a southerly direction in drainage channels and ditches, to be negligently diverted from its natural and usual course, and forced in and upon the property of plaintiffs, their stable and garden lot, which, since the year 1892, and up to the time of bringing the action, has greatly injured and damaged plaintiffs by causing the stable and garden lot to be badly washed and flooded in times of rains; the garden thus being made wet, washed, and unfit for cultivation and unproductive, and rendered unhealthy, whereby the enjoyment of the property was greatly diminished, and its value greatly lessened, to plaintiffs' dam-age in the sum of $500. The second count alleged: During the year 1902 the town of Norcross cut a ditch alongside plaintiffs' hotel, and so elevated the outside of the sidewalk as to throw a large portion of the water from the east side of the town into the ditch and away from formerly used ditches along the street and sidewalk under the hotel and into a basement, flooding it in time of rains, by which the walls of the hotel and basement became saturated with water and cracked, causing the mortar and bricks to fall out, and the foundations, plastering, sides, and partitions to be undermined and rendered weak and dangerous. Plaintiffs have been thereby damaged in the sum of $500. One of the plaintiffs undertook to relieve the property from the effects of defendant's acts, and he was arrested by the town authorities, and punished upon a charge of obstructing the sidewalks. Before the acts herein complained of, the water from the...