The Athens Mfg. Co. v. Rucker

• Court: Georgia Supreme Court
• Writing for the Court: Blandford, Justice
• Citation: The Athens Mfg. Co. v. Rucker, 4 S.E. 885, 80 Ga. 291 (Ga. 1887)
• Decision Date: 31 October 1887
• Parties: The Athens Manufacturing Company. vs. Rucker.

80 Ga. 291

The Athens Manufacturing Company. vs. Rucker.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

Damages. Negligence. Water-courses. Mill-dams. Trespass. Pleadings. Evidence. New trial. Before Judge Hutchins. Clarke superior court. April term, 1887.

The plaintiff bought and went into possession of his land in 1870. Sandy creek flows into the Oconee river about: one and a half miles from the land, at a point not quite two miles above the dam. The bottoms in plaintiffs land were in good order in 1868, when the factory dam was raised eight or twelve inches; after that the ditches began to be filled with sand, and as fast as cleaned out would fill up again. The condition of the land was worse in 1871 than in 1870, and continued to grow worse; it became wet and soggy, and some of it had to be abandoned. The creek began to be filled with sand, and when the ditches were cleaned out, water would run from it into them so that they would not dry the land. After the dam was raised, it required a longer time for the river to recede after a rain than before. Before the dam was raised, the land would dry quickly enough, but afterwards it would become saturated and remain wet for a week. The " dead water " of the dam caused the sand to bank up in the creek and to fill its bed, until the influence of the dam was felt for miles above it. If it were lowered, the fall thus given to the river would cause it to clean out its channel, and then the sand, not being obstructed by the water of the river, would be washed out by the water of the creek, and the plaintiff\'s land would be drained; the dam is what causes the creek to fill up.

The foregoing facts, among others, appeared from the plaintiffs evidence. For the remainder of the report, see the decision.

Barrow & Thomas, for plaintiff in error.

E. K. Lumpkin, and T. W. Rucker in propria persona, contra.

Blandford, Justice.

Rucker, in 1873, brought his action on the case against the Athens Manufacturing Company, in which he allegedthat this company had injured and damaged him $5,000; in that they had erected a certain dam across the Oconee river, and had afterwards increased the height of the dam a number of inches, and thereby caused the waters of Sandy creek and of the river to overflow his land, and furthermore caused the height of the stream passing through his land to rise to a nearer level with the surface of the land, rendering his land moist and wet and injuring it for purposes of cultivation.

The jury rendered a verdict in favor of Rucker; whereupon the defendant moved for a new trial, which was denied, and the case was brought here upon the exceptions assigned in the motion for a new trial.

1. The first and second grounds of the motion are, that the verdict is contrary to law, and is without evidence to support it. The evidence consisted of the testimony introduced by the plaintiff in the court below, no evidence being introduced by the defendant. The plaintiff and his witnesses testified that, by reason of this dam, the water in the river and the creek which ran along and through the plaintiff's lands, was raised and percolated through his land, which became wet and soggy, and that he was thereby injured and damaged. This testimony was not contradicted by the defendant in the court below. We think, therefore, that the first and second grounds of the motion are not well-taken, and that the verdict is not contrary to law and to the evidence, but is in accordance therewith.

2. The third ground of the motion is, that the court erred in refusing to charge the jury, as requested by defendant's counsel, as follows: " In this case, the plaintiff claims damages on account of the overflow of his land by the back-water of defendant's dam, which back-water, he says, covers his land, and also by causing the water to rise in the banks of the stream passing through plaintiff's land, thus bringing the surface of said land nearer the water level, and wetting the land. These results, he says in his declaration, were caused by the erection of defendant's dam.

In order to sustain his alleged rights to recover in this case, he must show that back-water from the dam comes in contact with the plaintiff\'s land; unless, therefore, the back-water comes in contact with the plaintiff\'s soil, the consequences are not within the scope of the present action, and you should find for the defendant."

We understand the declaration differently from the plaintiff in error. Whilst it is true that pleadings...