Smith v. City of Atlanta

• Decision Date: 17 February 1886
• Citation: 75 Ga. 110
• Parties: SMITH v. THE CITY OF ATLANTA.
• Court: Georgia Supreme Court

75 Ga. 110

SMITH v. THE CITY OF ATLANTA.

Supreme Court of Georgia.

February 17, 1886

October Term, 1885.

1. Although a municipal corporation had the right, under its charter, to establish a system of grading and drainage, yet this should have been done so that it would not prove a nuisance to the citizens; and if a culvert were dug across a street whereby the surface water from the lands of adjacent proprietors was gathered, charged with the filth of sinks and thrown upon the land of another, producing noxious scents and sickness, and rendering the enjoyment of her property impossible, the city would be liable for damages.

2. The sewer being under the control of the city, if it be a nuisance, the city alone could abate it, and not to do so would be equivalent to maintaining and keeping it up; it would be a continuing nuisance, and for its maintenance the city would be liable.

( a. ) The evidence was sufficient to carry the case to the jury, and a non-suit was wrong.

Municipal Corporations. Streets and Sidewalks. Nuisance. Damages. Non-suit. Before Judge CLARK. City Court of Atlanta. June Term, 1885.

Two cases, brought in 1882 and 1883 respectively by Mrs. Smith against the city of Atlanta for damages, were tried together. The testimony for the plaintiff showed, in brief, as follows The city had changed a cul vert from one point on Hunter street to another, and had extended it diagonally across the street and changed its direction, and so maintained it before that time, there was sufficient fall in the drain to carry off the sewage, but since then the drainage had to be carried further and with a less fall in proportion to distance, and at every hard rain the lot of the plaintiff was overflowed and foul deposits were left upon it, rendering it unhealthy and offensive as a residence, producing sickness and damaging its rental value from one-third to one-half. Prior to its construction, there was a gully or natural drain which carried off the water; this ran near the edge of the plaintiff's lot, but not on it. About 1870, Hunter street was worked out and graded, and the place where the drain was was filled up several feet. This rendered a sewer or culvert necessary, and as a part of the system of grading and draining the streets, this culvert and change in its direction and location occurred. An engineer testified that he thought it was in the wrong place; but when asked whether the city engineer,...