Shaheen v. G & G Corp., 27829

• Decision Date: 31 May 1973
• Docket Number: No. 27829,27829
• Citation: 230 Ga. 646,198 S.E.2d 853
• Court: Georgia Supreme Court
• Parties: Shouky A. SHAHEEN v. G & G CORPORATION.

Page 853

198 S.E.2d 853

230 Ga. 646

Shouky A. SHAHEEN v. G & G CORPORATION.

No. 27829.

Supreme Court of Georgia.

May 31, 1973.

Schwall & Heuett, Emory A. Schwall, Stanley M. Lefco, Atlanta, for appellant.

Fine & Block, A. J. Block, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

The appellant brought this action for injunction and damages in three counts for a continuing trespass, continuing nuisance and breach of contract against the appellee which is an adjoining property owner. Count I shows that the appellant purchased its property of February 10, 1970. It alleges that about April 28, 1967, the appellee graded its property and placed large quantities of dirt on the property now owned by the appellant. It also alleges that the natural flow of water was changed by the granding and large quantities of water are dumpted on the appellant's property. Count 2 alleges that the appellant's predecessor in title, Plymouth Development Company, and the appellee entered into a written agreement on April 28, 1967, whereby each agreed to grade its property according to certain specifications and that the appellee had failed to do so. Count 3 alleges that the appellee's actions constitute a continuing nuisance.

Appellee filed its defenses and counterclaimed for injunction and damages. It asserted that in the written agreement of April 28, 1967, the appellant's predecessor in title, Plymouth Development Company, admitted that it had graded its property leaving the appellee's property at a higher elevation; that Plymouth agreed its property would be graded to a specified slope; that this was done by Plymouth in compliance with said agreement; that said grade existed until February 10, 1970, when the appellee chamged the grade causing additional damages to the appellant.

This appeal is from the trial court's denial of appellant's motion for summary judgment on the counterclaim and the granting of appellee's motion for judgment on the pleadings as to counts 1 and 3 of the complaint, which motion was treated as a motion for summary judgment. Held:

1. Under the evidence submitted, there is a genuine issue of material fact existing on the counterclaim. The trial court did not err in denying the motion for summary judgment on this basis.

2. The appellant contends that the allegations of count 1 and count 3 of the complaint and the evidence submitted in opposition to appellee's motion for summary judgment on these counts show a continuing trespass and continuing nuisance and therefore these counts should not have been dismissed. Appellee contends that its act of regrading its property was completed on April 28, 2967, and that the statute of limitation bars these counts of the complaint which was filed on January 12, 1972.

'The doctrine of the application of the statute of limitations to actions for nuisance is discussed, with little disagreement, in quite a number of text-books and decisions. A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately...