Phinizy v. The City Council Of Augusta

• Decision Date: 31 July 1872
• Parties: JOHN PHINIZY, plaintiff in error. v. THE CITY COUNCIL OF AUGUSTA, defendant in error.
• Court: Georgia Supreme Court

47 Ga. 260

JOHN PHINIZY, plaintiff in error. v. THE CITY COUNCIL OF AUGUSTA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Trespass. Municipal corporation. Drainage. Charge of Court. Before Judge Gibson. Richmond Superior Court. January Term, 1872.

John Phinizy brought case against the City Council of Augusta, alleging in his declaration substantially the following facts: That he has been for fifteen years the owner of a certain tract of land in the county of Richmond, lying southeast from the city of Augusta; that defendant has so constructed the drains leading from said city, that almost all the water passes upon his land, and so covers it as to render it comparatively of but little value; that said conduct of defendant commenced many years ago, but since January 1st, 1861, has been gradually growing worse and worse as the city increases in size and population; that he has repeatedly notified defendant of the nuisance to which he was sub-jected, and has received verbal promises of redress which have never been complied with; that defendant owns the Augusta Canal, leading from Bull Sluice, in said county, on the Savannah river, to the city of Augusta, in which said city there are three levels of said canal, the first two being used for manufacturing purposes, and the third as a waste way to return the water from the other levels to the Savannah river; that on said third level there is constructed a flood gate on Marbury street where it crosses said street, intended to be closed when the water in the Savannah river is so high as to back up and fill said third level, thereby preventing an overflow in such portions of the city as said third level passes through; that during such high water as renders it necessary to close said gate, the mills and manufacturers on the second level of said canal are prevented from running by reason of want of outlet for their waste water, and said defendant has caused to be constructed at the eastern end of said third level a gate whereby the water is discharged across Twiggs street, through the ditches used for the drainage of the city; that plaintiff\'s land has been subjected to many and repeated overflows by reason of said discharge of water from said canal for the past nine years, and has thereby rendered it almost valueless for cultivation, causing it to become yearly of less value; that in July, 1869, said defendant caused to be deepened and enlarged through the lands of the estate of Charles Delaigle, which alone separated the property of plaintiff from the city of Augusta, and nearly to the line of plaintiff\'s land, the principal sewers and drains of said city whereby *the volume of water distributed and discharged upon plaintiff\'s land, has been greatly increased, cultivation of the soil impeded, and ingress and egress almost stopped during the winter season, of all of which defendant has had notice; that said defendant, for the benefit of said city, for the past nine years, has been turning all the water from said city towards the land of plaintiff; prays that process may issue, etc.

The defendant pleaded: 1st. The general issue. 2d. That the several supposed causes of action did not accrue within four years next before the commencement of said action. 3d. That the overflow of plaintiff's land is caused by the natural configuration of the land adjoining and near to plaintiffs property, and by the natural water shed of the adjoining and adjacent lands, and not through the agency, direct or indirect, of artificial or unnatural disturbance of said natural water shed or drainage.

The evidence in unnecessary to an understanding of the decision of the Court, and is, therefore, omitted.

The jury returned a verdict in favor of the defendant. The plaintiff moved for a new trial upon the following grounds, to-wit:

1st. Because the verdict was contrary to law, and strongly and decidedly against the weight of the evidence.

2d. Because the verdict was contrary to the charge of the Court, "that the plaintiff is entitled to recover unless the defendant can show the right to overflow existing by grant or prescription."

3d. Because the Court refused to charge the jury as requested by plaintiff's attorney, "that the right to overflow is such an interest as must be created in writing, and defendant must show its existence, to relieve it from liability, if any damage has been sustained." 4th. Because the Court refused to charge the jury as requested by plaintiff's attorney, "that the overflow of land, for the purpose of relieving the drains and sewers of a municipal corporation, is taking of private property for public uses, and compensation must be paidtherefor."

*5th. Because the Court refused to charge the jury as requested by plaintiff's attorney, "that if it appear that the natural flow of water falling on the land occupied by the city of Augusta, is towards and upon the plaintiff's land, the building of a large city and the construction of drains therefrom, whereby large quantities of water, more than of nature, are thrown upon the plaintiff's land, it is taking of an easement for which compensation must be paid."

6th. Because the jury found contrary to the charge of the Court, "that if the defendant is the owner of a canal for manufacturing purposes, it is bound to manage and control the same, so as not to injure the property of others, and it has no right to use the drains of the city and thereby discharge upon the property of private citizens a greater volume of water than would have occurred in the natural course of events."

7th. Because the Court charged the jury, "that if the plaintiff purchased any land liable to overflow from the drains of the city of Augusta, it was his misfortune, and he could not recover, as a man must purchase land subject to any overflow, from any natural cause, at his own risk."

8th. Because the Court charged the jury, "that it was the duty of every municipal corporation to keep open its drains and sewers, and that if damage ensued from the flowing of water therefrom, in its natural course, the defendant was not liable."

9th. Because the Court charged the jury, "that if the defendant caused any damage by turning off the water of the Augusta Canal through the drains of the city, it was responsible therefor, but that it was not liable for any damage caused by overflowing the banks, or for discharging the water to avoid overflow."

10th. Because the Court charged the jury, "that plaintiff was not entitled to recover for damage incurred at any time prior to four years before suit was commenced."

The motion for a new trial was overruled by the Court, and plaintiff excepted and assigns said ruling as error.

*Frank H. Miller, for plaintiff in error.

1st. A person has no right to turn water from his own land on the land of another: Adams v. Walker, 34 Conn., 466.

2d. The right to overflow must exist by prescription or grant: 4 McCord, 96; Crabb, R. P., 251.

3d. It is such an interest in land as must be created in writing under the statute of frauds: 4 John, 81; 29 Georgia, 254; 3 Georgia, 83; Code, 1940; 12 Georgia, 242; Cook v. Duer, decided March 5, 1872.

4th. A municipal corporation has no greater power than natural persons, except through the exercise of the right of eminent domain and payment of just compensation: 25 Wisconsin, 223; 41 Illinois, 502; 30 Georgia, 154. And this right of eminent domain can only exist as to land within the corporate limits.

5th. As to any property owned by the city they are responsible for damages caused by want of care: 2 Denio, 445; Mayor, etc., v. Bailey; Barrow v. Mayor, etc., of Baltimore; 2 American Jurisprudence, 203; 10 Ohio, 159.

A. R. Wright, for defendant.

1st. Where there has been a verdict of the jury upon the merits of the issue between the parties, and the Judge refuses a new trial, this Court will not disturb the verdict if there be any evidence to sustain it: 38 Georgia, 129; 39 Georgia, 68, 119, 223, 359; 40 Georgia, 115; 41 Georgia, 63, 94, 125, 215; 42 Georgia, 146, 163.

2d. Where the verdict is right in itself, a new trial will not be granted on the ground of misdirection by the Judge: 6 Georgia, 324; 10 Georgia, 429; 14 Georgia, 55; 15 Georgia, 155; 17 Georgia, 267, 435; 22 Georgia, 237; 33 Georgia, 173, 207; 37 Georgia, 456, 195, 94; 30 Georgia, 485, 857; 42 Georgia, 244, 306, 609; 41 Georgia, 186, 507, 675; 40 Georgia, 423.

3d. An easement in the soil of another may be acquired by prescription, by twenty years' adverse and uninterrupted enjoyment: Melvin v. Whiting, 13 Pick, 184; Hazzard v. *Robinson, 3 Mason, 272; Goringen & Summers, 2 Iredell, 229. See also Pool & Lufburrow v. Lewis, 41 Georgia, 162

4th. All actions for damages to realty shall be brought within four years after the right of action accrues: Code, section 3003.

WARNER, Chief Justice.

This was an action brought by the plaintiff against the defendants to recover damages for causing water to be thrown upon the plaintiff's land...