Nimmons v. City of La Grange

• Decision Date: 30 October 1956
• Docket Number: No. 36223,2,Nos. 1,36223,s. 1
• Citation: Nimmons v. City of La Grange, 94 Ga.App. 511, 95 S.E.2d 314 (Ga. App. 1956)
• Parties: Nell C. NIMMONS v. CITY OF LA GRANGE
• Court: Georgia Court of Appeals

Page 314

95 S.E.2d 314

94 Ga.App. 511

Nell C. NIMMONS v. CITY OF LA GRANGE.

No. 36223.

Court of Appeals of Georgia, Division Nos. 1, 2.

Oct. 30, 1956.

Syllabus by the Court.

The superior court judge erred in sustaining the general demurrer to the petition.

Mrs. Nell Callaway Nimmons filed an action for damages against the City of LaGrange in Troup Superior Court. The petition alleged in substance: that the plaintiff was, at all times pertinent to this proceeding, the owner of certain property fronting on West Haralson Street in the City of LaGrange; that the City of LaGrange, acting by and through its lawfully constituted agents, caused said West Haralson Street whereon petitioner's property fronts to be paved and curbed, said work being completed on or about September 1954; that in paving said West Haralson Street, the level of said street was so raised and graded and the curbing so erected thereon that the plaintiff's said lots are now below the level of said street paving and curbing; that prior to said paving and curbing of said street, the drainage on the said street and the natural drainage on the said lots was sufficient to drain water and precipitation from said lots; that since said paving and curbing of West Haralson Street and as the direct result of paving and curbing said street and the raising of the level thereof, the drainage system provided is insufficient to drain from the said lots fronting on said street the increased volume of water flowing upon said lots and that the raised level of said street interferes with, obstructs and prevents the natural drainage of water and precipitation from said lots; that as a direct result of the insufficient drainage system and interference with the natural drainage from said lots during the months of November and December of 1954 and the months of January, February, March and April of 1955, large and excessive amounts of rain-water and waste-water was diverted upon and onto plaintiff's lots where the same, because of the insufficient drainage, creates a stagnant pool of water upon said lots; that said water standing on plaintiff's lots constitutes a continuing nuisance from day to day, especially in rainy or during adverse weather, which continuing nuisance is injurious to the health and welfare of persons who reside on or may reside on said lots; that because of the maintenance by said city of the said continuing nuisance the value of said lots is so greatly decreased that they are of little value or of no value to plaintiff; that immediately prior to the acts herein complained of and of the creation and maintenance by said city of the said continuing nuisance, the value of said lots was $7,500, but since the creation and maintenance of said nuisance the value of said lots amounts to only $2,000; and that plaintiff, in conformity with the law of Georgia as contained in Code, § 69-308, on April 12, 1955, duly presented her claim for damages in writing to the governing authority of the City of LaGrange for adjustment, a copy whereof is attached to the petition, and said city has retained same for more than thirty days and has failed and refused to act upon the same and has at all times refused to pay plaintiff for the damages suffered by her.

The defendant filed a general demurrer which was sustained. The plaintiff excepted to that ruling and the case is here for review.

Wyatt & Morgan, Lewis R. Morgan, LaGrange, for plaintiff in error.

Horace E. Richter, Richter & Birdsong, LaGrange, for defendant in error.

QUILLIAN, Judge.

The defendant insists that the petition did not set forth a cause of action because the plaintiff failed to give the city written notice of her claim within six months of the happening of the event on which the suit and claim were predicated, as required by Code, § 69-308. While it is true the paving, grading and curbing of the street was completed in September of 1954, the petition alleged that the water flowing onto the plaintiff's property created a continuing nuisance. The owner of realty may recover for all damages, caused by a continuing nuisance, which have occurred within the statutory period of limitations, without regard to when the structure causing the nuisance was completed or when such structure became a nuisance. Farley v. Gate City Gas Light Co., 105 Ga. 323, 31 S.E. 193; Holmes v. City of Atlanta, 113 Ga. 961, 39 S.E. 458; Massengale v. City of Atlanta, 113 Ga. 966, 39 S.E. 578; Gabbett v. City of Atlanta, 137 Ga. 180, 73 S.E. 372.

In referring to the removal of water gates, the function of which was to control the waters of a canal, the Supreme Court, in City Council of Augusta v. Lombard, 101 Ga. 724, 728, 28 S.E. 994, held: 'Where the structure, though permanent in its character, is not necessarily, and of itself, a permanent and continuing nuisance, but only becomes such in consequence of some supervening cause, which produces special injury at different periods, a separate action lies for each injury thus occasioned, and the statute begins to run against each such cause of action only from the time of its accrual,--and from the time when the special injury is occasioned. So this court has held that recovery might be had for injuries resulting from the erection and maintenance of a dam, in so far as such injuries occurred within four years preceding the bringing of the action, although the dam may have remained unchanged for twenty years. Athens Mfg. Co. v. Rucker, 80 Ga. 291, 4 S.E. 885.' It was further held in 101 Ga. on page 729, 28 S.E. on page 995, of the same decision: 'Afterwards, over plaintiff's objection, they removed the gate to the race which supplied plaintiff's foundry, and it was in consequence of this removal of the gates that the injury is alleged to have occurred. This removal did not, per se, constitute a nuisance, but became such in certain times of high water by discharging large and unusual quantities of water upon the premises of the plaintiff, thereby injuring him. For injuries so received, the plaintiff may, as against the municipal corporation, maintain an action, and for each successive inundation a new cause of action may accrue. The statute of limitations begins to run against such cause of action only from the time of its accrual, and recovery may be had upon it even though the negligent act by which it was occasioned may have been done more than four years before the suit was brought.'

The pronouncement is found in Smith v. City of Atlanta, 75 Ga. 110, 112, as follows: 'Again, the defendant in error insists by its able and learned counsel that, as the sewer was dug in 1870, and it had done nothing to it since that time, that plaintiff's action is barred by the statute of limitations. This sewer was and is under the control of the city; if it be a nuisance and the city has not abated it, the city may be said to have maintained it and kept it up, and it is thereby a continuing nuisance, for the maintenance of which the city is liable. The evidence submitted by the plaintiffs was sufficient to carry this case to the jury, and the nonsuit was therefore wrong.'

One of the most elucidating and well considered cases on the subject of the statute of limitations as applied to actions for damages consequent upon the creation and maintenance of a nuisance is that of City Council of Augusta v. Marks, 124 Ga. 365, at page 366, 52 S.E. 539, at page 540, in which it is held: 'If by reason of a trespass upon realty it has been so injured as to render it permanently useless and valueless to the owner, he should recover the damages thus occasioned in a single action. Thus where a petition alleged that by the erection and maintenance of a dam certain land of...