E. T. Barwick Mills, Inc. v. Stevens
Decision Date | 03 March 1964 |
Docket Number | No. 40447,No. 3,40447,3 |
Parties | E. T. BARWICK MILLS, INC. v. O. B. STEVENS |
Court | Georgia Court of Appeals |
Pittman & Kenney, L. Hugh Kemp, Dalton, for plaintiff in error.
C. H. Dalton, Dalton, for defendant in error.
Syllabus Opinion by the Court
1. Where a municipality assumes the control and management of a sewer or drain which has been constructed in a public street, it is bound to use reasonable diligence and care in its operation, maintenance and repair, and in keeping it clear and free of obstruction as to prevent injury or damage to others, (Langley v. City Council of Augusta, 118 Ga. 590, 45 S.E. 486); and, where the municipality is in control of the sewer the municipality alone has the power to abate the nuisance (Smith v. City of Atlanta, 75 Ga. 110(2); and, although the drainage or sewerage may be sufficient at one time, yet, where by reason or change of conditions, such as increased use (Candler v. Hunnicutt, 35 Ga.App. 120(1), 132 S.E. 140; City of Macon v. Douglas, 45 Ga.App. 798(1), 165 S.E. 922; Massengale v. City of Atlanta, 113 Ga. 966(1), 39 S.E. 578; City of Macon v. Cannon, 89 Ga.App. 484(1), 79 S.E.2d 816); or, because of a defect at a particular place (City of Atlanta v. Warnock, 91 Ga. 210(1), 18 S.E. 135, 23 L.R.A. 301) it becomes inadequate, a duty to correct such situation evolves upon the municipality.
2. Ford Motor Company v. Williams, 219 Ga. 505, 508, 134 S.E.2d 32, 35. Hulsey v. Interstate Life & Acc. Ins. Co., 207 Ga. 167, 169, 60 S.E.2d 353, 355.
3. Construing the petition in the present case in accordance with the above rulings and principles, where the petition alleges that the defendant business corporation was connected to the sewerage system of a municipality, with the permission of the municipality, which system was adequate at the time but became inadequate when there was 'an excessive' increase in sewage emptying into the system by the defendant, as the sewage ran through an 8-inch pipe into a manhole which had only a 6-inch pipe for an outlet, thus overloading the 6-inch pipe to which plaintiff's home system was connected and backing up into plaintiff's home system and overflowing into the basement causing damage to the house and furnishings, and where the petition also alleges that the condition complained of could be remedied in three ways, all of which involved a discontinuance of the use of the municipal sewerage system by the defendant, an inference is authorized that the reduction or decrease in the amount of sewage emptied into the municipal system by the defendant would not remedy the situation, and that the condition complained of by the plaintiff is not caused by 'excessive' amounts of sewage emptied into the system by the defendant; but rather by the defect in the construction of the sewer. The petition so disclosing, there is no liability on the part of the defendant. It follows that the trial court erred in overruling the general demurrer to the petition.
4. There...
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...(citations) it becomes inadequate, a duty to correct such situation evolves upon the municipality.' E. T. Barwick Mills, Inc. v. Stevens, 109 Ga.App. 248, 136 S.E.2d 28, 29 (1964). The judgment is DONOFRIO, C.J., and STEVENS, J., concur. ...