Sweetman v. Owens , 147 Ga. 436 ( 1917 )

Atkinson, J.

Proprietors'of land instituted an action against coterminous upper proprietors. The petition alleged that “a large ditcli or slough, which is a natural drain from two to three hundred acres of land, flows from and across the defendant’s land; thence across . . the land of” petitioners. The defendant constructed a described rock wall on his own land across the drainway, whereby “the natural flow would obstruct it, causing it to be backed upon the defendant’s land,” and forced “through and over” the wall upon petitioners’ land in a way and manner different from which the water would naturally flow, thereby causing a described damage to the land. The prayers were: (a) for damages for a stated amount; (6) that defendant be permanently enjoined and restrained from forcing, by said wall or any obstruction whatever, the water upon the plaintiffs’ lands in a way and manner contrary to those provided by nature; (e) for process and general relief. There was evidence tending to support the material allegations of the petition; and the jury returned the following verdict: “We, the jury, find' in favor of plff. for $15.00 dollars damages, and in favor of injunction.” Error is assigned upon a judgment refusing a new trial. Held:

1. When the verdict is construed in the light of the allegations of the petition, it is a finding in favor of injunction to prevent the defendant from forcing water to accumulate on his land and to pass over the land of the plaintiffs in a way contrary to its natural flow. An injunction of that character is not unlawful on the ground that it is mandatory as compelling the defendant to do the affirmative act of pulling down his wall. Goodrich v. Georgia Railroad Co., 115 Ga. 340 (41 S. E. 659) ; City of Atlanta v. Warnock, 91 Ga. 210 (18 S. E. 135, 23 L. R. A. 301, 44 Am. St. R. 17); Oostanaula Mining Co. v. Miller, 145. Ga. 90 (88 S. E. 562).

(а) Under the principle of the cases just cited, the verdict finding for injunction was authorized by the evidence.

(б) Special damages flowing to the plaintiffs on account of the diversion of water were also recoverable. Georgia R. &c. Co. v. Bohler, 98 Ga. 184 (26 S. E. 739).

2. An error in a decree or judgment can not be made a ground of exception to the overruling of a motion for new trial. Bond v. Sullivan. 133 Ga. 160 (65 S. E. 376, 134 Am. St. R. 199); Crow v. Crow, 134 Ga. 10 (67 S. E. 400, 28 L. R. A. (N. S.) 353, 19 Ann. Cas. 932). Accordingly no ruling will be made on the assignment of error based on the ground of the motion for new trial which complains of the form of the decree.

No. 252. December 13, 1917.

Equitable petition. Before Judge Tarver. Bartow superior court. February 17, 1917.

Neel & Neel, for plaintiff in error. O. 0. Pittman, contra.

3. The remaining grounds. of the motion for new trial, when considered in the light of the pleadings, the evidence, and the charge of the court in its entirety, show no cause for reversal.

Judgment affirmed.

All the Justices concur.