Reid v. City of Atlanta , 73 Ga. 523 ( 1885 )

Jackson, Chief Justice.

" The plaintiff in error sued the defendant in error for 'damaging her property by so digging and keeping up a sewer as that it became and remains a nuisance, flowing, after every rain, human excrement on her lot and near her house, so as to make her residence disagreeable, hurtful to inmates, and unhealthy. The facts alleged in the declaration amount to the above synopsis, when boiled down to their essence. The sewer was dug or changed in 1870, so as now to produce, after rain-falls, these, besides other damages to her property, set forth therein. By amendment, she.claims damages for the four years last precedingthe time the declaration was filed. On demurrer, the case was dismissed, because barred on its face by the statute of limitations; and that is the sole question, because if not barred, the grievance is clearly actionable.

1. Every continuance of a nuisance is a renewal of wrong, and therefore actionable until abated. 3 Blackstone, 220; 7 Ga., 327; 47 Id., 266, 267. Surely it is a nuisance to keep up a sewer which, when it rains, throws upon one’s lot, and near the house where she resides, too, excrement, disagreeable iii smell and hurtful to health. We. are constrained, therefore, to rule that the court erred in dissmising the plaintiff’s action.

The able and indefatigable counsel of the defendant' in error cites a case from the Supreme Court of Iowa, excepting cities in the regular construction of grading and ditching from, the rule that -there can' be no prescription for a nuisance. 45 Iowa, 652. But we do not feel at liberty to depart from Blackstone, endorsed by this court in the 7th, and re-affirmed in the 47th volume of Georgia reports, to follow that court.

We are aware that the question is of vast, importance to cities in making permanent improvements in grading and drainage, and we will go to the extent of intimating that when the city acts on a general plan for the improvement of her streets, a stale demand should not meet with such favor in respect to the measure of damages,.unless the nuisance be clearly proved, and its continuance be a clear continuance of damages to property by- reason of the hurtful character which the nuisance imparts to the trespass.

Judgment reversed.