Johnson v. City of Atlanta, 43503

• Court: Georgia Court of Appeals
• Writing for the Court: QUILLIAN; BELL, P.J., and HALL
• Citation: Johnson v. City of Atlanta, 161 S.E.2d 399, 117 Ga.App. 586 (Ga. App. 1968)
• Decision Date: 02 April 1968
• Docket Number: No. 43503,No. 2,43503,2
• Parties: J. T. JOHNSON v. CITY OF ATLANTA

Page 399

161 S.E.2d 399

117 Ga.App. 586

J. T. JOHNSON v. CITY OF ATLANTA.

No. 43503.

Court of Appeals of Georgia, Division No. 2.

April 2, 1968.

Syllabus by the Court

Where, as here, private property is damaged through the negligence of a city's employees in the performance of a governmental function, but the employees' negligence neither results in the property being put to public use nor in the creation of a nuisance, the city cannot be held liable.

John T. Johnson filed a suit against the City of Atlanta. Count 1 alleged in substance that: a sewer line which was maintained by the city became clogged and stopped with sewage and debris at a point just below the property of the plaintiff; employees of the city attached a type of pressure device to the sewerage line for the purpose of removing the debris and refuse that had collected therein; when the pressure was applied to the sewer line it caused the sewage to back up in the line and flood the plaintiff's residence in excess of a depth of four inches; as a result of the flooding, his house and furniture were damaged in the amount of $3,838.75; the plaintiff was unable to live in the house for a period of six months after the flooding; the sewage has seeped into the flooring of the house and remained there on the date the petition was filed causing him to live in unsanitary and unpleasant conditions; the necessary notice of the claim had been given to the city and had been rejected.

Count 2 contained substantially the same averments as Count 1 with the additional allegations that: the negligent acts of the city constituted a trespass on the plaintiff's property which resulted in the damage set forth; the trepass was continuing in nature in that the foul odor now pervades the floors of the house and the condition will exist for on undeterminable length of time.

The defendant filed general demurrers which were, by agreement, treated as a motion to dismiss. The motion was sustained and the plaintiff appealed.

Miles B. Sams, East Point, for appellant.

Henry L. Bowden, Thomas F. Choyce, Atlanta, for appellee.

QUILLIAN, Judge.

The plaintiff protests the correctness of the judgment dismissing the petition. He insists that the petition sets forth a right to recover for damages to his house and furnishings on the compatible theories: (a) that the damage to his house is compensable under the provisions of Art. I, Sec. III, Par. I of the State Constitution embodied in Code Ann. § 2-301 that 'private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid'; (b) that the act of negligence of the city employees in applying the pressure to the sewerage line created a continuing nuisance on his premises and caused damage to his house and furnishings; (c) that the city was performing a mere ministerial function in attempting to remove the debris and refuse from the sewer and hence is responsible for damage done through the negligence of its employees.

The incident causing the damage to the plaintiff's property is most deplorable, but in order to be compensable under Art. I, Sec. III, Par. I of the State Constitution the damage to the plaintiff's property must have been for a 'public purpose.' The Supreme Court has construed the words 'for public purpose' as synonymous with 'public use.' Sheppard v. City of Edison, 161 Ga. 907, 132 S.E. 218; Housing Authority, etc. v. Johnson, 209 Ga. 560, 562, 74 S.E.2d 891. From the facts set out in the petition no inference can be drawn that the damage to the plaintiff's house was done in order that it be used for a 'public purpose.' The conclusion is inescapable that the petition set forth no right of action under...