Southern Ry. Co v. Cook

• Decision Date: 12 March 1903
• Citation: 117 Ga. 286,43 S.E. 697
• Parties: SOUTHERN RY. CO. v. COOK.
• Court: Georgia Supreme Court

43 S.E. 697

117 Ga. 286

SOUTHERN RY. CO.

v.COOK.

Supreme Court of Georgia.

March 12, 1903.

PERMANENT NUISANCE—SUCCESSIVE ACTIONS.

1. Where one persists in maintaining a nuisance which is not permanent in its character, but which can and should be abated, every continuance of the nuisance is a fresh nuisance, for which a new action will lie.

2. A suit against one who maintains a nuisance of the character above indicated, for damages thereby done to land of the plaintiff from a named date to the date of the filing of the petition, is no bar to a fresh action for damages since done to the same land by a continued maintenance of the same nuisance.

(Syllabus by the Court.)

Error from Superior Court, Coffee County; Jos. W. Bennet, Judge.

Action by J. S. Cook against the Southern Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

De Lacy & Bishop, for plaintiff in error.

E. D. Graham, for defendant in error.

CANDLER, J. Suit was brought against the Southern Railway Company for damages alleged to have been sustained by reason of its having maintained a nuisance in keeping a dam across a stream on the plaintiff's land, as a result of which his field was inundated and rendered unfit for cultivation. The defendant filed a special plea in abatement, alleging the pendency of another suit between the same parties for the same cause of action. The issue raised by this special plea was first tried, the court directing a verdict against the plea. The defendantfiled exceptions pendente lite, on which error is assigned in the bill of exceptions, excepting to the direction of this verdict. The trial of the issues formed by the plea to the merits resulted in a verdict for the plaintiff. The defendant moved for a new trial. The motion was overruled, and the movant excepted.

1. Where the effect of a trespass upon land is to render it wholly and permanently worthless for the uses to which it is mainly adapted, the owner must bring a single action to recover all the resulting damages-past, present, and future. Allen v. Railroad Co.. 107 Ga. 838, 843, 33 S. E. 696, and cases cited. Where, however, the nuisance is not of a permanent and continuing character, but one which can and should be abated, the party injured has no right to assume that it will be maintained indefinitely, and his remedy is, not to recover in one action for all past and future damages, but to bring from time to time separate suits for the recurring injuries sustained, instituting each within the period prescribed by the statute of limitations for taking steps to recover damages actually suffered up to the time the action is filed. Holmes v. Atlanta, 113 Ga. 962, 39 S. E. 458. A recovery In such a suit of such damages as had been suffered up to the time of suit is no bar to a second action for damages subsequently received from the same cause. Mulligan v. Augusta, 115 Ga. 337, 41 S. E. 604, and...