Smith v. Dallas Util. Co

• Decision Date: 11 May 1921
• Docket Number: (No. 12216.)
• Citation: 27 Ga.App. 22,107 S.E. 381
• Parties: SMITH v. DALLAS UTILITY CO.
• Court: Georgia Court of Appeals

27 Ga.App. 22

107 S.E. 381

SMITH

v.DALLAS UTILITY CO.

(No. 12216.)

Court of Appeals of Georgia,

Division No. 1.

May 11, 1921.

(Syllabus by the Court.)

Under the pleadings and the evidence, a verdict was demanded for the defendant, and the court did not err in so directing.

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Paulding County; F A. Irwin, Judge.

Action by Martha Smith against the Dallas Utility Company. Judgment for defendant, and plaintiff brings error. Affirmed.

This is a suit for alleged damages to realty. The petition was filed January 17, 1920, and alleged that in the year 1911 the Paulding County Power Company erected a dam across Pumpkinvine creek, and that this dam caused the waters of the creek to back, overflow, and submerge the plaintiff's lands, thereby destroying them for agricultural purposes; that the plaintiff was thus deprived of the use of her lands for the years 1918 and 1919, and that they were of the yearly value of $1,600; that about February 10, 1918, the defendant, Dallas Utility Company, acquired the dam and its appurtenances from the Paulding County Power Company, and has since maintained the dam, the same being a nuisance; that about May

4, 1918, written notice was given the defendant to abate the nuisance complained of and by its refusal to do so she is entitled to damages from the defendant in the sum of $3,200, the value of her lands for the two years mentioned.

The defendant filed an answer, admitting the erection of the dam by its predecessor in title, and that it had continued to maintain the dam, notwithstanding the notice to abate, but denied that it was liable to plaintiff in damages for any amount, on the ground that, if there was a right of action, it was barred by the statute of limitations.

The undisputed evidence showed the following material facts: The plaintiff was the owner of the lands in question, which, if not covered by the waters of the creek, were fertile and susceptible of yielding 800 bushels of corn during the years 191S and 1919, but the dam caused the bed of the creek to fill up with sediment, etc., with the result that its waters overflowed her lands to such an extent that no crops at all could be grown during the above-mentioned years, and practically none since the dam was constructed. While every year the water in the creek was rising some and the sand and the water on the plaintiff's lands becoming deeper, the fertility and value of the lands were practically destroyed soon after the dam was built, certainly within one year thereafter, as the last crop raised on thelands was in 1910, and since then it had been impossible to cultivate the lands or to raise anything thereon. The dam was built of concrete and was 30 or 35 feet high, and there was no way to prevent the lands in question from being overflowed except by destroying the dam. The dam was properly constructed and maintained. In connection with the dam the defendant maintained an electric plant where electricity was generated and distributed to the public. From this plant the defendant furnished lights to the city of Dallas, for street-lighting purposes, to private residences and public buildings, and power for various mills and motors, and for the public generally. At the time the dam was erected (which was in 1910 or 1911), the Paulding County Power Company owned the lands on both sides of the creek and the bed thereof.

In 1913 the plaintiff sued the Paulding County Power Company for damage to the same lands from October, 1910, to January, 1913, alleged to have been caused by the erection and maintenance of the same dam, and obtained a verdict and judgment in her favor. The judgment, however, was never paid, as the Paulding County Power Company was subsequently placed in the hands of a receiver, and the plaintiff failed to intervene and obtained none of the funds in the hands of the receiver.

At the conclusion of the evidence the court directed a verdict for the defendant, and the plaintiff excepted.

C. D. McGregor and A. L. Bartlett, both of Dallas, for plaintiff in error.

W. E. Spinks and C. B. McGarity, both of Dallas, for defendant in error.

BROYLES, C. J. (after stating the facts as above.) [2] Section 3634 of the Civil Code of 1910 makes it lawful for corporations or individuals who own or control lands upon opposite sides of any nonnavigable stream in this state to construct and maintain a dam across the stream for the development of water power and other purposes. This right, however, does not release such individuals or corporations from liability for damages to private property resulting from the construction and...