Vickers v. City of Fitzgerald, 20994

• Court: Georgia Supreme Court
• Writing for the Court: QUILLIAN
• Citation: Vickers v. City of Fitzgerald, 117 S.E.2d 316, 216 Ga. 476 (Ga. 1960)
• Decision Date: 15 November 1960
• Docket Number: No. 20994,20994
• Parties: Elie C. VICKERS v. CITY OF FITZGERALD.

Page 316

117 S.E.2d 316

216 Ga. 476

Elie C. VICKERS v. CITY OF FITZGERALD.

No. 20994.

Supreme Court of Georgia.

Nov. 15, 1960.

Syllabus by the Court.

1. A petition of a lower riparian owner showing an adulteration, by an upper riparian owner, of water flowing through their properties with resultant damage to such lower owner, in violation of Code §§ 85-1301 and 105-1407, is not demurrable as stating no cause of action.

2. Where the damage of such lower owner is shown to have been the result of the maintenance of a nuisance of a continuing character and to have occurred within the four-year period next preceding the filing of the suit for damages, such owner's cause of action is not barred by the statute of limitations, Code § 3-1001.

3. To acquire a prescriptive easement over real property, there must be continuity of possession of the right asserted for the entire period fixed by the statute, Code § 85-406.

4. The petition is not demurrable on the ground of laches on the part of the petitioner, as nothing in the petition authorizes the inference that there was any delay on the petitioner's part which rendered the ascertainment of the truth more difficult, or in any way hindered the defendant city in making its defense.

5. The petition shows a compliance with provisions of Code § 69-308 with reference to notice to the municipal corporation.

Elie C. Vickers has brought the present writ of error to have this court review assignments of error on the trial court's action in sustaining general demurrers to, and the consequent dismissal of, his petition, in which he seeks to recover enumerated general and punitive damages of $145,000 from the City of Fitzgerald, a municipal corporation, and to enjoin an alleged nuisance. The material allegations of his petition as amended are substantially these: The petitioner is the owner of described lands consisting of some 570 acres, in Ben Hill and Irwin Counties, on which is located a large private lake covering approximately 450 acres; in addition to owning and maintaining his residence on such land, the petitioner has, at great expense and large investment, constructed a bowling alley, dance hall, boat docks, three swimming pools, dressing rooms, concession stands, and other improvements on the land for the purpose of developing and improving the lake and surrounding lands into a desirable and attractive resort for picnicking, recreation, and commercial fishing, from all of which he was receiving substantial patronage and profit prior to the time when the defendant began dumping large quantities of sewage and other obnoxious matters into streams feeding his lake, as hereinafter set forth. The petitioner has owned the described lands, lake, and described improvements continuously during and within the four-year period next preceding the filing of this suit, for more than twenty years next preceding the filing of this suit, the defendant city, acting by and through its Water, Light, and Bond Commission, has disposed of the discharge from its sewerage system and septic tanks by emptying such discharge into various ditches and small creeks which flow and empty into a small stream commonly known as 'WILLACOOCHEE CREEK,' AND THIS IS DONE At pOints within The limits of the defendant city approximately three miles upstream from the point at which Willacoochee Creek flows into the petitioner's lake. During and within the fifteen years next preceding the filing of this suit, the amount of discharge from the defendant city's sewerage system and septic tanks became increasingly larger in volume; and, during and within the four years next preceding the filing of this suit, the defendant city, acting by and through the aforementioned commission, has regularly and continuously dumped and emptied vast quantities of raw, untreated sewage, and other enumerated obnoxious matter from its sewerage system and septic tanks, into the described drainage ditches and small streams which flow into Willacoochee Creek, all of which are non-navigable and wholly incapable of absorbing the vast quantities of raw, untreated sewage and other obnoxious matter dumped therein by the city before those waters flow into the petitioner's lake. This action by the defendant city is causing the water in the lake to be contaminated and saturated with the described obnoxious matter, which has killed thousands of pounds of fish, rendering the lake unfit and undesirable as a commercial fishing site during this period of time, reduced its reasonable annual value as a commercial fishing site by $5,000; this action and conduct of the defendant city has caused and is continuing to cause such described conditions in and around the petitioner's lake as to render his property unfit and undesirable as a recreation site, reducing its reasonable annual value as a recreation site by $5,000; and this action and conduct of the defendant city has caused and is continuing to cause such described conditions as to prevent the petitioner and his family from using and enjoying their residence, resulting in intense mental and physical pain, discomfort, embarrassment, and humiliation, for which the petitioner is entitled to recover at least $5,000 per year. During and within the four-year period next preceding the filing of this suit, the petitioner has made frequent and repeated appeals to the defendant city to abate this unbearable and injurious nuisance, all of which have been ignored, and denied to his great injury and damage, for which he is entitled to $10,000 as punitive damages; and this conduct and action of the defendant city has permanently damaged the defendant's described property in the amount of $75,000, all of which damages amount to $145,000. It is further alleged that this action and conduct of the defendant city constitutes a continuous nuisance dangerous to life, health, and property of the petitioner, who, as a lower riparian landowner and member of the public is specially and injuriously affected thereby. It is also alleged that the petitioner had furnished the defendant city and its commission with written notice of his claims for equitable relief and damages, as set forth in the petition, more than thirty days prior to the filing of the present action, 'all as required by and in accordance with the provisions of Code § 69-308,' by furnishing each with an exact copy of the allegations contained in the petition attached to the written notice which is attached to the petition as an exhibit, which being addressed to the defendant and its commission, is dated May 11, 1959, receipt of which is acknowledged thereon as of the same date by the clerk of the defendant and its commission, and is in these terms: 'In accordance with and pursuant to the provisions of Georgia Code § 69-308, we attached hereto and present herewith for your consideration a copy of a petition setting forth a claim of Mr. Elie C. Vickers against the City of Fitzgerald and the Water, Light and Bond Commission of the City of Fitzgerald for equitable relief and damages in the amount of $145,000,00. As you will notice, this petition has been prepared for filing in the Superior Court of Ben Hill County, Georgia. We are attaching a copy of the petition to this notice in order to advise you of the time, place, and extent of the injuries complained of by Mr. Vickers and the negligence or other acts upon which the claim is founded. If the petition does not contain sufficient information to enable you to definitely locate the property injured, the amount of damages claimed, or to otherwise determine whether or not the claim should be settled or adjusted without litigation, we will be glad to furnish any other...