Mayor v. Sikes

• Decision Date: 23 April 1894
• Citation: 94 Ga. 30,20 S.E. 257
• Parties: MAYOR, ETC., OF CITY OF ALBANY . v. SIKES.
• Court: Georgia Supreme Court

20 S.E. 257

94 Ga. 30

MAYOR, ETC., OF CITY OF ALBANY .

v.SIKES.

Supreme Court of Georgia.

April 23, 1894.

Eminent Domain — Right to Compensation — New Trial—Conditional Order,

1. If, in the exercise of a power conferred by statute to erect and maintain city waterworks, a municipal corporation arrests or obstructs the natural flowage of surface water, and causes it to flow upon adjacent land, whereby the market value of the laud is diminished, the owner may recover compensation for this damage under that provision of the constitution which declares that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.

2. In view of the conflict and uncertainty in the evidence as to whether the depreciation in the value of the plaintiff's property was occasioned by the flooding incident to the erection of the waterworks, and, if so, to what sum the depreciation from this cause amounted, it was error to make the grant of a new trial conditional upon reducing the recovery from $1,500 to $300. The new trial should have been granted unconditionally.

(Syllabus by the Court.)

Error from superior court, Dougherty county; B. B. Bower, Judge.

Action by Ella B. Sikes against the mayor and council of the city of Albany, Ga., to recover damages for injury to plaintiff's land, caused by arresting and obstructing the natural flow of surface water, and causing it to flow on such land. There was a judgment for plaintiff, and defendants bring error. Reversed.

Wooten & Wooten, for plaintiffs in error.

S. T. Jones and W. T. Jones, for defendant in error.

LUMPKIN, J. 1. Before the ratification of the present constitution of this state, the owner of private property actually taken for public use was undoubtedly entitled to compensation; but, where such property was merely damaged in the prosecution of a public work, it was damnum absque injuria. Our constitution now provides that "private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid." Code, § 5024 (Const art 1, § 3, par. 1). It follows that where a municipal corporation, in the exercise of a statutory power authorizing it to erect and maintain city waterworks, in so doing injures or damages the private property of a citizen, that corporation will be liable to make compensation in damages, if an individual would be liable for causing injuries or damages of the same kind. In connection with all that is said above, see Smith v. Floyd Co., 85 Ga. 420, 11 S. E. 850. Construing so much of the declaration as was left after a portion of it had been stricken on demurrer, together with the evidence offered by the plaintiff in support of her cause of action, the main question presented for our consideration is, can she recover from the mayor and council of Albany compensation for arresting or obstructing the natural flowage of surface water, and causing it to flow upon her land, thereby diminishing the market value of her property? The evidence tends to show that, before the erection of the city waterworks, the lot upon which the reservoir now stands was more elevated than that of the plaintiff, and that, consequently, rain water falling upon the upper lot ran down upon the lot of the plaintiff, but that, since the erection of the waterworks, rain water which fell upon other land, and ran upon, and was more or less absorbed by, the present city lot has been diverted from it and caused to overflow the plaintiff's lot, so that it now receives a much greater quantity of surface water than it did before. Whether the city is liable for this increased flowage of surface water upon the plaintiff's land depends upon whether or not we adopt what is known as the "common-law rule" or the "civil-law rule, " bearing upon the subject of surface water. According to the rule of the common law, surface water, like the waters of the sea, was regarded as a common enemy, and it was the right of any landowner to expel it from his own land, without regard to the injury which might thereby be occasioned the proprietor of a lower estate. By the rule of the civil law, while the lower proprietor is bound to receive the surface water which naturally flows from the estate above, the owner of the latter has no right by diverting surface water which he ought to receive from an estate above his own, and to which his estate is servient, thus to relieve his own estate of the servitude which nature placed upon it and cast the whole burden upon the estate of his neighbor below. It is not our present purpose to discuss at length the merits of these two conflicting rules. They have been stated and discussed by numerous judges in many of the courts of this country, and any one desiring to pursue the investigation will find the sources of information indicated in the authorities below cited. According to Gould, the rule of the common law has been accepted in Massachusetts, Maine, Vermont, New York, New Hampshire, Rhode Island, New Jersey, Michigan, Minnesota, and Wisconsin; that of the civil law in Pennsylvania, Illinois, North Carolina, Alabama, Tennessee, California, and Louisiana, and it has been referred to with approval by the courts of Ohio and Missouri. Gould, Waters (2d Ed.), §§ 265, 266. Perhaps a majority of the American states have adopted the civil-law rule. In O'Connell v. Railway Co., 87 Ga. 246, 13 S. E. 489, many of the cases bearing upon this question are referred to....