McFarland v. DeKalb County, 24695

• Decision Date: 23 September 1968
• Docket Number: No. 24695,24695
• Citation: 163 S.E.2d 827,224 Ga. 618
• Parties: Martin McFARLAND v. DeKALB COUNTY et al.
• Court: Georgia Supreme Court

Page 827

163 S.E.2d 827

224 Ga. 618

Martin McFARLAND v. DeKALB COUNTY et al.

No. 24695.

Supreme Court of Georgia.

Sept. 23, 1968.

Rehearing Denied Oct. 10, 1968.

Murphy, McFarland & Turoff, Martin McFarland, Atlanta, for appellant.

William E. Zachary, Sr., Robert E. Mozley, George P. Dillard, Herbert O. Edwards, Decatur, for appellees.

Syllabus Opinion by the Court

DUCKWORTH, Chief Justice.

This is an action for damages and to enjoin a continuing trespass by reason of the taking and damaging of private property by governmental agencies dumping in increased quantities and in a different manner than previously thereto quantities of surface water which would have flowed on said property by reason of gravity from the upper areas adjoining said property. On the first appearance of the case, DeKalb County v. McFarland, 223 Ga. 196, 154 S.E.2d 203, this court merely held that if a petition alleges a cause of action for any relief it will withstand a general demurrer and that in this instance the petition did allege a cause of action for legal relief. Thereafter, on the trial of the case the lower court eliminated the equitable and injunctive features of the case and allowed the jury only to consider the question of damages to the petitioner for a set period of time. Held:

1. The lower court erred in not allowing the petitioner to prove his case as alleged and in not allowing the jury to consider the question of whether or not the plaintiff was entitled to equitable relief to stop the alleged trespass and nuisance which was continuing in nature upon his property. A question of fact was shown as to whether or not these governmental agencies named as defendants had concentrated and collected surface water in greater quantity than in prior years and caused it to flow upon or back up upon the lot of the plaintiff in greater quantity and in a manner different from that in which the waters had been received from the upper areas by gravitation. Such activity would be a continuing nuisance authorizing a court of equity to restrain it and to require the defendants to cease and desist until and unless it was condemned for public purposes. The court erred in failing to charge on the injunctive features of the case. Georgia RR. & Banking Co. v. Bohler, 98 Ga. 184, 26 S.E. 739; Cox v. Martin, 207 Ga. 442, 62 S.E.2d 164; Rinzler v. Folsom, 209 Ga. 549, 552, 74 S.E.2d 661.

2. The court erred in refusing to allow the evidence in support of petitioner's amendments as to damages occurring since the filing of the suit inasmuch as the case was one in equity and in restricting the damages to a definite time, since the court had before it the entire case at the time in order to avoid a multiplicity of suits. The measure of damages cannot be determined until it has been established that (1) there exists a nuisance and continuing trespass; and (2) it is not temporary and not abatable but permanent. These issues determine the charge on the measure of damages. Danielly v. Cheeves, 94 Ga. 263, 269, 21 S.E. 524; Langley v. City Council of Augusta, 118 Ga. 590, 591, 45 S.E. 486; City of Macon v. Roy, 34 Ga.App. 603, 130 S.E. 700. Therefore the court erred in ruling out the consideration of the special damages both in the original petition and in the amendments. Mitchell County v. Hudspeth, 151 Ga. 767, 108 S.E. 305.

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