Nalley v. Carroll County

Citation135 Ga. 88,70 S.E. 788
PartiesNALLEY. v. CARROLL COUNTY et al.
Decision Date23 February 1911
CourtSupreme Court of Georgia

(Syllabus by the Court.)

Highways (§ 120*) — Exceptions, Bill of (§ 57*)—Dismissal of Wkit of Error—Sufficiency of Bill of Exceptions—Maintenance of Nuisance—Pleading.

An owner of land brought suit on March 14, 1908, against Carroll county and W. W. Nichols, for damages, making, among others, the following allegations: Nichols, acting "in concert" with the county, and "with the consent and direction and with the authority of the ordinary" of the county, "who had control of the public roads" of the county, placed rock in 1903 in one of the county's public roads, where it crossed a stream, thereby causing the water to overflow the lands of the plaintiff during the spring and summer of the following year, and each year thereafter, each of which overflows caused damage to the plaintiff. "That said partial dam aforesaid is a nuisance to petitioner and to the public in general, and the defendants are maintaining said nuisance negligently and to the petitioner's damage as aforesaid." Held:

(a) The petition, properly construed, was a suit for damages caused by a maintenance of the alleged nuisance, and not for its creation.

(b) It being alleged that the county and Nichols maintained the alleged nuisance on one of the county's public roads, both defendants were liable, under the allegations of the petition, to the plaintiff for the damages caused by the overflows arising from the maintenance of the nuisance each year after its creation.

(c) A writ of error will not be dismissed on the ground that it does not appear that the bill of exceptions was filed within 15 days after it was signed and certified by the trial judge, when the certificate of the clerk sending the bill of exceptions to this court was dated within 15 days after the date of the judge's certificate, and states that the bill of exceptions was then on file.

[Ed. Note.—For other cases, see Highwavs, Dec. Dig. § 120;* Exceptions, Bill of, Cent. Dig. §§ 97-99; Dec. Dig. § 57.*]

Error from Superior Court, Carroll County; R. W. Freeman, Judge.

Action by Emmy Nalley, administratrix, against Carroll County and another. Judg-ment for defendants, and plaintiff brings error. Reversed.

Jno. O. Newell and H. W. Nally, for plaintiff in error.

W. P. Brown, for defendants in error.

HOLDEN, J. The plaintiff in error brought suit for damages against the county of Carroll and W. W. Nichols. The petition, filed March 14, 1908, as amended, made substantially the following allegations: A certain creek crossed by a public road of the county runs through the plaintiff's land, situated near the road. Nichols, "with the consent and direction and with the authority of" the ordinary of the county, built in 1903 "a partial dam" with rocks "in the roadbed across the said stream to a depth of about 4 or 5 feet, and from 7 to 10 feet in width, " thereby causing the water in the creek to overflow 50 acres of such land during the spring and summer of each year since 1903. "The defendants acting in concert, and the said Carroll county through the defendant W. W. Nichols, built a partial dam across the said creek. That on account of said partial dam, as aforesaid, in the spring of 1904 the spring rains filled up the bed of the creek from said dam or partial dam on said lot of land No. 26, as aforesaid, and caused the waters of the said creek and the sands of the same to back water and overflow 50 acres" of the plaintiff's laud, "and totally destroyed the agricultural purpose of said land. * * * That said partial dam aforesaid is a nuisance to petitioner and to the public in general, and the defendants are maintaining said nuisance negligently and to the petitioner's damage as aforesaid." Plaintiff has been unable to make a crop on or cultivate the lands overflowed, which were "free from injury till the rains in the spring of 1904 aforesaid, and petitioner alleges that since said date and at each succeeding spring his lands have been continuously and annually ruined." Plaintiff has been damaged $2,000. The land before being overflowed was worth $200 per acre, and was worth $2,000 per annum for agricultural purposes. On January 13, 190S, plaintiff filed with the ordinary a claim for such damages. The market value of plaintiff's land has been diminished in consequence of the building of said dam and the raising of the bed of said stream, as set out. in the sum of $2,000. In one of the amendments it is alleged: "The damage as set out in the suit was done as therein set out to the realty within a period of 12 months just prior to the bringing of said action, so far as the same refer to the damage done by the county of Carroll, and within a period of 4 years next preceding the filing of the suit against the other defendant W. W. Nichols; the said damages being in the...

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4 cases
  • Department of Transportation v. Mixon
    • United States
    • Supreme Court of Georgia
    • 5 Octubre 2021
    ......of Commrs. of Lowndes County v. Mayor and Council of the City of Valdosta , 309 Ga. 899, 903 (2) (a), 848 S.E.2d 857 (2020). ... made in that case was not by a full bench, and we are bound by the full bench decision in [ Nalley v. Carroll County , 135 Ga. 835, 70 S.E. 788 (1911) ]."). 11 The State can insulate itself from ......
  • Decatur County v. Praytor
    • United States
    • Supreme Court of Georgia
    • 5 Marzo 1927
    ......767, 42 S. E. 71; Wagener v. Forsyth County, 135 Ga. 162, 68 S. E. 1115; Adkins v. Crawford County, 135 Ga. 679, 70 S. E. 335; Nalley v. Carroll County, 135 Ga. 835, 70 S. E. 788; Weathers v. Easterling, 153 Ga. 601, 113 S. E. 152; Board of Commissioners of Morgan County v. ......
  • Nalley v. Carroll County
    • United States
    • Supreme Court of Georgia
    • 23 Febrero 1911
    ...70 S.E. 788 135 Ga. 835 NALLEY v. CARROLL COUNTY et al. Supreme Court of GeorgiaFebruary 23, Syllabus by the Court. An owner of land brought suit on March 14, 1908, against Carroll county and W. W. Nichols, for damages, making, among others, the following allegations: Nichols, acting "in co......
  • Gabbett v. City of Atlanta
    • United States
    • Supreme Court of Georgia
    • 13 Diciembre 1911
    ...... . .          Error. from Superior Court, Fulton County; Geo. L. Bell, Judge. . .          Action. by Sarah E. Gabbett against the City of ... City Council of Augusta v. Marks, 124 Ga. 365(1), 52. S.E. 539, and citations. See, also, Nalley v. Carroll. County, 135 Ga. 835, 70 S.E. 788. In a suit for the. maintenance of such a nuisance, ......

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