Ingram v. Baldwin County

• Decision Date: 04 May 1979
• Docket Number: No. 57153,57153
• Parties: INGRAM v. BALDWIN COUNTY.
• Court: Georgia Court of Appeals

Page 429

254 S.E.2d 429

149 Ga.App. 422

INGRAM v. BALDWIN COUNTY.

No. 57153.

Court of Appeals of Georgia.

Submitted Jan. 10, 1979.

Decided Feb. 28, 1979.

Rehearing Denied March 20, 1979.

Certiorari Denied May 4, 1979.

Dickens, Mangum & Burns, Joe O. Mangum, III, Milledgeville, for appellant.

Gilmore, Waddell & Phillips, David W. Waddell, Milledgeville, for appellee.

DEEN, Chief Judge.

Appellant Ingram brought suit against Baldwin County for damage to her home resulting from two separate overflows of raw sewage on January 23 and January 25, 1978, which rendered her home uninhabitable. She also alleged that sewage had overflowed into the yard of her next door neighbor on January 18, 1978, and that the county had been notified on all three occasions. The county admits that the overflows into Ms. Ingram's home occurred, but denied liability and moved for summary judgment. Ms. Ingram brings this appeal from the trial court's grant of the county's motion for summary judgment contending that the court below erred in holding that appellant's cause of action was barred by sovereign immunity, that the property had not been taken or damaged for public purposes within the meaning of Art. I, Sec. III, Par. I, of the Georgia Constitution (Code Ann. § 2-301), and that the incidents of overflows did not constitute a nuisance because they were a single occurrence.

Lawsuits involving taking or damaging of property under Code Ann. § 2-301 may be maintained against counties. Baranan v. Fulton County,232 Ga. 852, 209 S.E.2d 188 (1974). While the power to construct a sewer and drainage system is a governmental function, a county cannot create and maintain such a system as a nuisance which damages private property without subjecting itself to civil liability. See Reid v. Gwinnett County, 242 Ga. 88, 249 S.E.2d 559 (1978). However, a single instance of backup of sewage into a private home would not be sufficient to create a nuisance for which liability would attach. Johnson v. City of Atlanta, 117 Ga.App. 586, 161 S.E.2d 399 (1968). "The whole idea of Nuisance is that of either a continuous or regularly repetitious act or condition which causes the hurt, inconvenience or injury . . . A single isolated occurrence or act, which if regularly repeated would constitute a nuisance, is not a nuisance until it is regularly repeated." Southeastern Liquid Fertilizer Co. v. Chapman, 103 Ga.App. 773, 775, 120 S.E.2d 651, 653 (1961).

" On a motion for summary judgment the...