Towaliga Falls Power Co. v. Sims
| Docket Number | 1,883. |
| Decision Date | 13 October 1909 |
| Citation | 65 S.E. 844,6 Ga.App. 749 |
| Parties | TOWALIGA FALLS POWER CO. v. SIMS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A tenancy at will is an interest in land, and is capable of being damaged by the erection or maintenance of a nuisance.
Under the Code of this state a nuisance is not, as at common law essentially an injury to real property. Any unlawful use of one's property whereby another is injured, whether the injury is to property, or to business, to person, or otherwise, is an actionable nuisance.
Public or quasi public corporations are, so far as they exercise legitimately and in a proper manner the powers expressly or by reasonable and necessary implication conferred on them liable in damages only for taking or damaging property.
The properly doing of that which the law authorizes is not a nuisance.
The justification and exemption from ordinary law or their respective charters extend only so far as the authorization of the law extends. If they act beyond the powers conferred by law or by the charter, they cannot relieve themselves from the ordinary rules of damage by showing the public nature of the business carried on by them.
It is never to be presumed that the Legislature intended to authorize a corporation to erect a nuisance materially tending to destroy the life or health of others.
Corporations engaged in the operation of plants for the generation and transmission of electricity for the purpose of lighting cities and towns, operating railroads and street ears and furnishing light and power to the public, are public service corporations, and are expressly recognized as such by the laws of this state. They possess the power to exercise the right of eminent domain. They may dam streams and back water over the lands of others upon payment of just compensation. But in the construction of dams and in the backing of water they must choose their sites with due regard to the surroundings. They are not authorized to maintain stagnant ponds, polluted pools of water, or places in which mosquitoes breed, in unusual numbers to the endangering of the health of surrounding communities.
There was testimony from which the jury might have found that the plaintiff had a spell of malarial fever as a result of being bitten by anopholas mosquitoes, bred in unusual numbers in stagnant water caused by the defendant's dam, but that the mosquitoes would have been incapable of communicating the disease if they had not previously bitten a person having malaria in his system. Held, that the court properly refused to charge the jury that under these circumstances the damages would be too remote to hold the defendant liable for damages.
Where the question is as to the cause of an attack of malarial fever suffered by the plaintiff, it is relevant for him to prove that the defendant erected a dam which caused the water to become stagnant and the mosquitoes to breed in unusual numbers; that previously there had been no malarial fever in the community; that the erection of the dam and the breeding of the unusual number of mosquitoes was followed by an epidemic of malarial fever; and that in the opinion of experts malarial fever is communicated by mosquitoes. The testimony was circumstantial, but of some probative value.
Prima facie any practicing physician is competent to testify as an expert as to the methods by which malarial fever may be communicated. His competency is not destroyed by reason of the fact that his views do not coincide with those generally held by the members of his profession and by other scientists. The weight to be given his testimony is for the jury.
When one is in possession of premises as a tenant and another maintains a temporary nuisance, whereby the premises are rendered unhealthful, and the tenant and dependent members of his household are made sick, the tenant may recover, not only for the diminution caused to the value of his leasehold interest by the fact that the premises have become undesirable for habitation, but also for the direct damages caused him by the illness of himself and his family. His illness and that of the household is evidentiary on the question as to whether the premises have been rendered undesirable for habitation and therefore of less rental value, but the pain and suffering, physician's bills loss of time, etc., directly resulting from the illness, are elements of damage apart from the loss sustained in the shrinkage of the value of the property, and there may be a recovery of the damages from both sources when the pleadings and the evidence are such as to authorize it.
When the injury sued for consists in damage to the value of a tenancy at will, and to the plaintiff's person through illness suffered by himself and to his purse through the loss or service of members of his family, the plaintiff is not required to make proof of the loss with arithmetical accuracy in dollars and cents. He is entitled to recover for all actual damages, the extent of them to be estimated by the jury according to their enlightened consciences, from all the facts proved in the case.
No legal reason appears for reversing the judgment of the court below refusing a new trial.
Error from City Court of Forsyth; W. M. Clark, Judge.
Action by George Sims against the Towaliga Falls Power Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Cleveland & Goodrich and Persons & Persons, for plaintiff in error.
H. M Fletcher, for defendant in error.
Sims sued the Towaliga Falls Power company, alleging that during the year 1906 he was a tenant residing on certain lands in Monroe county; that the defendant built a high dam across the Towaliga river some distance below his residence, and backed a large body of water on and over a great area of land near his home; that the land so submerged was covered with trees and other vegetation; that the ponding of this water and the submerging of the vegetation caused malaria, and contaminated and affected the air with poisonous and deleterious gases; that the pond was a nuisance; that it made him and his family sick, and caused them to lose a large amount of time and to incur expenses of medical treatment and nursing; and that he was deprived of the use of his premises. By amendment he set up that he himself, his wife, and two minor children had been made sick of malarial fever; and the details of the sickness, lost time, and expenses incurred are set out definitely. By a further amendment he alleged that the submerging of the vegetation had produced noxious, disagreeable, and poisonous odors, vapors, gases, etc., causing malaria and marsh gas to permeate, impregnate, and contaminate the atmosphere upon his premises, and that the pond had incubated, produced, and raised a great many mosquitoes, which infested his land and premises, from which he and his family suffered great annoyance; that his home was rendered uncomfortable, undesirable, and at times almost uninhabitable; that his premises were rendered unhealthy and undesirable as a place to live; that great injury was caused to the land and to the enjoyment thereof and to the use of his home; that mosquitoes which were bred in the pond and which had not previously infested it became a medium for the transmission of malaria and did transmit it to himself and his family, causing them to have malarial fever, which they otherwise would not have had. He prayed for damages on account of the injury to the use of his premises on account of his own sickness, pain, and suffering, on account of the loss of the services of his wife and minor children, and on account of expenses incurred in connection therewith. On the trial the plaintiff introduced evidence tending to establish the allegations of his petition. The testimony of the defendant was to the effect that the pond was not stagnant; that there was less stagnant water, etc., in the neighborhood of the plaintiff's premises after the erection of the dam than there was before; that the pond did not cause his sickness; that, if he was sick, he did not have malarial fever; that the mosquitoes about the pond were not of the anophelas (the malaria-bearing) kind--indeed, there was enough expert testimony as to miasma, malaria, mosquitoes, bacteria, bacilli, microbes, germs, and other things in Greek, Latin, Italian, and sesquipedalian terminology to hopelessly confuse any jury--and as all this is copied without material abridgment into the brief of evidence we ourselves are not without some justification if we decide this case without grasping all the points. The trial resulted in a verdict in favor of the plaintiff for $200; and the defendant, having filed a motion for a new trial, which was overruled, brings error. The record contains a large number of exceptions. We will not take them up seriatim, but will state certain general principles, applicable to the facts, and controlling upon the points presented.
1. The plaintiff's testimony showed that he was probably a tenant at will--that he was in possession by virtue of a parol contract for more than one year--though it may be that under the rule discussed in Cody v. Quarterman, 12 Ga. 386 (2), 399, a tenancy from year to year had resulted. A tenancy at will is an interest in land, and is capable of being damaged. See Hayes v. Atlanta, 1 Ga.App. 26, 57 S.E. 1087.
2. At common law a nuisance was regarded only as in injury to some interest in land. Blackstone's definition of a private nuisance is "anything done to the hurt or annoyance of the lands, tenements or hereditaments of another." The definition adopted in our Code is broader: "A nuisance is anything that worketh hurt, inconvenience, or damage to another." Civ. Code 1895, § 3861. An examination of the...
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