Langley v. City Council of Augusta

Decision Date14 August 1903
Citation45 S.E. 486,118 Ga. 590
PartiesLANGLEY v. CITY COUNCIL OF AUGUSTA.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. The general rule is that a municipal corporation cannot acquire real estate beyond its territorial limits, or lawfully perform any act beyond such limits, unless the power to do so is expressly given by law.

2. Upon reason and authority the acquisition of land for the purpose of perfecting a system of drainage or sewerage and the construction of drains and sewers as a part of such system should be an exception to the general rule.

3. The decision in Loyd v. Columbus, 15 S.E. 818, 90 Ga 20, which rules to the contrary of the proposition stated in the headnote last preceding, criticised and doubted.

4. Where an act is done by the officers and agents of a municipal corporation, which is within the corporate power and might have been lawfully accomplished had the municipal authorities proceeded according to law, the corporation will be liable for the consequences of an act of such officers or agents proceeding contrary to law, or in an irregular manner. Aliter where the act complained of lies wholly outside of the general or special powers of the corporation.

5. If the authorities of a city are authorized to construct a drain or sewer in a particular manner, after complying with given formalities, the city will be answerable in damages to a party sustaining injury as a consequence of the construction of such drain or sewer, though the method prescribed is not followed in making the construction.

6. If the authorities of a city authorized to construct drains and sewers beyond its limits construct the same without complying with the formalities prescribed by the charter, or, after the drain or sewer is completed, take charge of the same, and regulate it as a part of the system of drainage and sewerage of the city, the city, when sued for an injury resulting from the construction and maintenance of such drain or sewer cannot defend by alleging its want of authority to do the act complained of.

7. Under Act Dec. 8, 1880 (Acts 1880-81, p. 365), relating to the organization, powers, and duties of the board of health of the city of Augusta, the city authorities have the right to construct drains and sewers outside the limits of the city, after compliance with the formalities prescribed in the act.

8. If a municipal corporation negligently constructs a drain or sewer, or maintains the same in such a manner as to constitute a nuisance, it is liable in damages to any one injured thereby.

9. If the nuisance thus resulting is of a permanent nature, the person injured is entitled to compensation for all damages, both past and prospective. If the nuisance is not of a permanent character, but one which may be abated at any time, and upon its abatement no further injury will result, suit may be brought for the recovery only of those damages which have been actually sustained within the period prescribed by the statute of limitations before the suit is brought.

10. Even though a drain or sewer be properly constructed and properly maintained, if it results in damage to the property of a private citizen, he is entitled to compensation for such damage. In such a case the measure of damages for injury to the freehold is the difference in market value before and after the injury was inflicted.

(a) The petition in the present case, properly construed, sought to recover damages both for permanent injury to the freehold estate resulting from a mere presence of the ditch in front of plaintiff's property, though it be properly constructed and properly maintained, as well as actual damages sustained as a consequence of the ditch having been maintained during the time specified in the petition in such a manner as to constitute a nuisance.

(b) Evidence of unsightliness and general appearance of the ditch is admissible on the question of diminution in market value.

(c) Evidence of injury to shade trees by the construction of the ditch is also admissible for this purpose.

11. Act Dec. 20, 1899 (Laws 1899, p. 74), providing that notice of the time, place, and extent of injuries to persons or property claimed to have been inflicted by a municipal corporation shall be given to its officers before suit is brought, does not require absolute exactness of description, but simply that information as to the matters referred to may be given with sufficient definiteness to enable the city authorities to examine into the alleged injuries, and determine whether the claim shall be adjusted without suit.

12. If the notice and the petition correspond in all substantial respects as to the matters information of which is required to be given, the variance is immaterial.

(a) A statement in a notice claiming damages for injury to shade trees "set out by the owner in front of his property" does not materially vary from an allegation in the petition claiming damages for injury to shade trees which the plaintiff had "planted in the inclosure on his premises."

(b) Semble, that objection on the ground of variance should be taken advantage of by special demurrer, the notice being attached to the petition as an exhibit.

13. Title to a portion of a public street or road cannot be acquired by prescription. Nor can the right to have a ditch, constructed in a public street or road for the purpose of carrying off surface water, remain in an unchanged condition, be acquired by prescription.

Error from Superior Court, Richmond County; W. F. Eve, Judge.

Action by S. P. Langley against the city council of Augusta. Verdict for defendant, and plaintiff brings error, and defendant assigns cross-error. Judgment on the main bill of exceptions reversed, and on cross-bill affirmed.

E. H. Callaway and C. E. Dunbar, for plaintiff in error.

Wm. H. Barrett, for defendant in error.

COBB J.

Langley is the owner of three lots, with houses thereon, located just south of Turknett Springs Road, which is either in or near the city of Augusta. He brought suit against the city for damages, and in his petition alleged: When plaintiff bought the property above referred to, there was a small ditch between Turknett Springs Road and the property, sufficient to carry off all the water which from time to time fell or accumulated in that locality, or to which the drain was subject from its adjacent and natural watershed. After plaintiff bought and entered into possession of the property, the city constructed a large ditch between his property and the road, and also built a sewer or culvert to connect this ditch with another large ditch running in a different direction, the effect of which was to divert the water which flows into the ditch last mentioned through the culvert into the ditch which had been built in front of plaintiff's property. This latter ditch was left opened, uncovered, exposed, without curbing or supports, and without any protection whatever against caving, widening, or washing. As a result of this action of the city, water remains in the ditch all the time, becoming stagnant, and rendering the premises of plaintiff sickly and unhealthy. During heavy rains the ditch is not large enough to carry off all the water which flows into it, though before the culvert was constructed, and the water from the other ditch thereby diverted, the drain in front of plaintiff's property was amply sufficient at all times to carry off and properly drain all the water which came into it. Now the ditch frequently overflows the yard and premises of plaintiff, keeping the same constantly damp and wet, rendering the premises muddy and sloppy and sickly and unhealthy. The ditch has been constantly caving and widening, causing a quantity of plaintiff's land to fall in, and causing the supports under the porch and front portion of his storehouse to fall in. The construction and maintenance of the ditch has also greatly interfered with plaintiff's access to the Turknett Springs Road, rendering necessary the construction of several bridges across the ditch; and the life of a number of shade trees which plaintiff planted in the inclosure on his premises near the road has been endangered. It is alleged in the petition that the construction and maintenance of the ditch constitute a continuing nuisance. It is also alleged that the market value of plaintiff's property has been diminished more than one-half by the construction and maintenance of the ditch as above set out. Attached to the petition is a copy of a notice of plaintiff's claim for damages, which it is alleged was duly served upon the city before the suit was brought. In answer to the petition the city set up two defenses. (1) It is alleged that by the construction of the culvert or sewer connecting the two ditches the water was merely restored to its natural flow, and that no burden was placed upon the ditch in front of plaintiff's property that did not belong there naturally. (2) It is claimed that the work done by the officers and employés of the defendant was done outside of the limits of the city, and was for this reason ultra vires, and that the city is not liable for any injurious consequences resulting to the plaintiff therefrom. The case went to trial, and resulted in a verdict for the defendant, and plaintiff's motion for a new trial was overruled. To this he has excepted. The defendant excepts by cross-bill to the judgment overruling its motion for nonsuit.

1-7. Counsel for both sides addressed themselves in the argument in this court largely to the question as to whether the ditch which is the subject-matter of the plaintiff's complaint is inside or outside the city, this being an exceedingly doubtful question under the laws relating to the boundaries of the city of Augusta. After a careful examination...

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