Southern Mut. Inv. Corp. v. Langston

• Court: Georgia Court of Appeals
• Writing for the Court: CLARK; HALL, P.J., and EVANS
• Citation: Southern Mut. Inv. Corp. v. Langston, 197 S.E.2d 775, 128 Ga.App. 671 (Ga. App. 1973)
• Decision Date: 02 April 1973
• Docket Number: Nos. 47936-47939,No. 2,s. 47936-47939,2
• Parties: SOUTHERN MUTUAL INVESTMENT CORPORATION v. Norma C. LANGSTON et al. SOUTHERN MUTUAL INVESTMENT CORPORATION v. Doyle COUCH et al. SOUTHERN MUTUAL INVESTMENT CORPORATION v. Annie S. ANDERSON. SOUTHERN MUTUAL INVESTMENT CORPORATION v. William BASS et al

Page 775

197 S.E.2d 775

128 Ga.App. 671

SOUTHERN MUTUAL INVESTMENT CORPORATION v. Norma C. LANGSTON et al.

SOUTHERN MUTUAL INVESTMENT CORPORATION v. Doyle COUCH et al.

SOUTHERN MUTUAL INVESTMENT CORPORATION v. Annie S. ANDERSON.

SOUTHERN MUTUAL INVESTMENT CORPORATION v. William BASS et al.

Nos. 47936-47939

Court of Appeals of Georgia, Division No. 2.

April 2, 1973.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Robert W. Beynart, Atlanta, for appellant.

Fredericks, Jones & Wilbur, Carl Fredericks, Robert L. Wilbur, Jr., Marietta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

Four neighboring landowners whose property bordered a small stream filed separate suits against Southern Mutual Investment Corp., the owner of Mableton Village Apartments located on the other side of the creek. Each suit was identical excepting as to the amount of damages, each complaint alleging in short form: 'Due to the negligent activities of defendant at the project known as Mableton Village Apartment plaintiff incurred damages in excess of $_ _ in that the defendant altered the terrain during such activities so as to erode the premises of plaintiffs, causing said damage to the property of plaintiffs.'

The four suits were consolidated for trial. At the commencement of the trial the jury was transported to the site for an on-the-scene inspection. The evidence developed that the stream which served as the common boundary between the four plaintiff landowners and the defendant carried little or no water during dry periods, but carried substantial amounts of water during rain. In answer to plaintiffs' efforts to place the blame for the excessive water pouring into the stream which caused increased water velocity with consequent erosion of their stream banks, defendant contended the damage sustained by plaintiffs, if any, was caused by factors beyond defendant's control such as a substantial amount of water being put into this creek by a shopping center upstream. Defendant further argued a portion of plaintiffs' damages was sustained prior to defendant's acquisition of the apartments. Each of the four verdicts was the same, reading: '$2,000 for repair of damages to property.'

Defendant moved for a directed verdict at the conclusion of plaintiffs' presentation which was renewed at the end of the case. After adverse verdicts defendant filed its motions for judgment notwithstanding verdict or in the alternative for a new trial. The trial court overruled this motion from which ruling these four appeals were taken. The enumerations of errors are based upon the overruling of the motions for directed verdict, the entry of judgment, and the overruling of the alternative new trial motion.

The principal contention of appellant is that 'Plaintiffs failed to prove their damages as required by law, the offered proof being vague, indefinite, and speculative, and insufficient for submission to the jury.'

1. 'After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict. (cits).' Boatright v. Rich's, Inc., 121 Ga.App. 121(1), 173 S.E.2d 232.

2. There is sufficient evidence of damage to support the jury's verdict. The damage is caused by the water flowing off the defendant's property in a concentrated unnatural flow. 'The general rule that one land proprietor has no right to concentrate, collect, and discharge surface water by artificial means upon a lower proprietor in a manner different from that in which the water would be received by the lower estate applies in this case.' First Kingston Corporation v. Thompson, 223 Ga. 6, 7, 152 S.E.2d 837, 838. The damage caused by such force of water is the erosion and subsequent loss of land constituting plaintiffs' banks, the exposure of roots of trees and subsequent loss of these trees. Defendant's trees have fallen into the creek bed. The water in flowing around the obstructing tree stumps has widened the creek bed, which has caused cave-ins and further encroachments on plaintiffs' land. The spillways are broken and have not been repaired and defendant's lessees have thrown refuse in the creek bed, which also has not been removed. 'The principle upon which we rule this case is, that water having a time relation, as well as a space relation, both of them being fixed by nature, there is no more right in an adjacent proprietor to alter the one than the other. If the time relation of the stream is so altered that the effect of the water upon the lower tract is injuriously different from what it was by the natural flow of the stream, then a wrong has been done to the proprietor of the lower tract. We think that the owner of water has no more right artificially to project it forward on another man's land, than he has to push it back upon land in his rear; and if by so doing he causes damage, he ought to answer for it.' Grant v. Kuglar, 81 Ga. 637, 639, 8 S.E. 878.

3. There was a conflict in...