Ingram v. City of Acworth

• Decision Date: 01 October 1954
• Docket Number: No. 2,No. 35317,35317,2
• Citation: 90 Ga.App. 719,84 S.E.2d 99
• Parties: H. L. INGRAM v. CITY OF ACWORTH
• Court: Georgia Court of Appeals

Page 99

84 S.E.2d 99

90 Ga.App. 719

H. L. INGRAM v. CITY OF ACWORTH.

No. 35317.

Court of Appeals of Georgia, division No. 2.

Oct. 1, 1954.

Syllabus by the Court.

1. The petition sets out a cause of action for damages for the maintenance by the defendant of a sewage disposal plant in such manner as to cause a continuing nuisance dangerous to life and health, and is not subject to general demurrer on the ground that the city was at the time engaged in a governmental function.

2. The petition is not subject to attack as constituting a misjoinder of causes of action, or as setting out independent causes of action based upon both negligence and nuisance.

3. Under the allegations of the petition, the plaintiff had a right to bring the suit in his own name for damages proximately resulting to him during his period of ownership, regardles of the fact that he purchased the property after the erection of the sewage disposal plant in question.

Herbert L. Ingram filed an action in the Superior Court of Cobb County against the City of Acworth, seeking damages for the alleged improper erection and maintenance of a sewage disposal plant near his home, by reason of which he and his family suffered injury to their health and pecuniary damages. The defendant filed general and special demurrers to the petition, all of which were sustained and the petition was dismissed. The exception is to this ruling.

Ben Smith, Waycross, for plaintiff in error.

L. M. Autrey, Jr., Acworth, Hubert C. Schroeder, Marietta, for defendant in error.

TOWNSEND, Judge.

1. Ground 3 of the general demurrer is on the proposition that the petition states no cause of action for the reason that the maintenance and operation of a sewer-disposal plant is purely a governmental function for which there is no liability on the part of the city. In Cannon v. City of Macon, 81 Ga.App. 310, 321, 58 S.E.2d 563, 571, an action against a municipality for the construction and operation of a storm sewer in such manner as to damage the plaintiff's property, the following was cited with approval by the court as against the contention that the municipality was not liable for a governmental function: "It was * * * said in the Smith case [Smith v. City of Atlanta, 75 Ga. 110]: 'This sewer was and is under the control of the city; if it be a nuisance and the city has not abated it, no one else could; not having abated it, the city may be said to have maintained it and kept it up, and it is thereby a continuing nuisance, for the maintenance of which the city is liable." [Bass Canning Co. v. MacDougald Construction Co., 174 Ga. 222, 224, 162 S.E. 687]. It was in this case that the Supreme Court reversed the case of MacDougald Construction Co. v. Bass Canning Co., 42 Ga.App. 533, 156 S.E. 628, which cites City Council of Augusta v. Lamar, 37 Ga.App. 418, 140 S.E. 763. 'Manifestly, power to construct a system of sewers and drains does not authorize the municipal corporation to create a nuisance. In such a case the city cannot escape liability on the ground that it is engaged in the performance of a governmental function.' 4 McQuillin, Municipal Corporations, 2nd Ed., Revised, p. 412, § 1557; Delta Air Corporation v. Kersey, 193 Ga. 862, 870, 20 S.E.2d 245, 140 A.L.R. 1352. It follows that the court erred in sustaining the general demurrer to this count of the petition.'

In Kea v. City of Dublin, 145 Ga. 511, 89 S.E. 484, it is held as follows: 'Although municipal authorities may have plenary power in the matter of collection, removal, and disposition of garbage, yet they cannot lawfully create, in connection therewith, a nuisance dangerous to health or life; and where such a nuisance is created, and its effect is specially injurious to an individual by reason of its proximity to his home, he has a cause of action for damages. Bell v. Mayor, etc., of [City of] Savannah, 139 Ga. 298, 77 S.E. 165.' In the Kea case it was alleged that the city commenced to dump refuse and waste into the springhead of a pond about 100 yards from the petitioner's front door, that it placed there refuse, waste, and the bodies of dead animals, chickens, rats, and cats; that the refuse and dead bodies caused the water to remain ponded, stagnant, polluted, and poisonous, sending forth noxious and offensive odors and vapors, resulting in sickness to members of petitioner's family and in stated medical expenses, and great physical and mental pain and suffering, diminution of the rental and market value of his property. The petition here alleges more briefly that the municipality never covered the sewerage--disposal plant; that 'refuse and dead dogs were allowed by said city to fall into said sewage-disposal plant, causing odors of such a foul nature that it is oftentimes impossible for plaintiff and his family to remain at home * * * that their health and happiness has been seriously damaged thereby; and that the failure of the city to property erect and operate said sewerage disposal plant has allowed the same to become stagnant and to be polluted, sending forth such noxious odors and vapors and further impregnating the air that plaintiff and his family have become sick with fevers'; that, at the time of erection of the plant, the property had a market value of $10,000; and that 'at the present time plaintiff has been unable to even obtain an offer for his property.' Thus here, as in the Kea case, the petition alleges the maintenance of a continuing...