Phinizy v. City Council of Augusta , 47 Ga. 260 ( 1872 )

Warner, Chief Justice.

This was an action brought by the plaintiff against the defendants to recover damages for causing water to be thrown upon the plaintiff’s land by the construction of their drains and sewers from the eity of Augusta, for the benefit of the city. On the trial of the case, the jury found a verdict for the defendants. A motion was made for a new trial, on the several grounds of error set forth in the record, which was overruled and the plaintiff excepted. The Court charged the jury, in addition to other charges given to them, “ that if the plaintiff purchased any land liable to overflow from the drains of the city of Augusta, it was his misfortune, and he could not recover, as a man must purchase land subject to overflow, from any natural cause, at his own risk.” This charge of the Court, in view of the facts of the case, was error, in my judgment. Whilst it may be true, as a general rule, that if a man purchases land subject to overflow from natural causes, he purchases it at his own risk, still, that general rule was not applicable to the facts of this case. The plaintiff’s land was below the city, and if it was overflowed by water which naturally accumulated by the rains which fell upon the city and the surrounding more elevated land, and naturally run down towards and upon the plaintiff’s land, over other land between the city and the plaintiff’s land, as the God of nature made it to run, then the plaintiff could not recover; but that is not the case made by the evidence in the record. The water which falls upon the city by natural rains, as well as that which had been Introduced into the eity for manufacturing and other purposes, is concentrated into drains and sewers, constructed by the defendants for the benefit of the city, and is thus precipitated upon the plaintiff’s land. The water which flows from the city towards the plaintiff’s land is not permitted to flow over the other land between the city and his land in its natural course:, so as to allow any portion of it to be absorbed in its transit, but it is concentrated and confined to the drains and sewers constructed by the defendants for the benefit of the city. This charge of the Court assumes that the overflów of the plaintiff’s land, from the drains constructed by the city for its own benefit, was an overflow of his land from a natural cause, whereas, the overflowing of the plaintiff’s land by the construction of the defendants’ drains was caused by artificial means, created by the defendants for their own benefit. If, by the construction of such drains and sewers to carry off the water which naturally falls upon the city, and the water which has been introduced into the city by means of the canal, a greater volume or quantity of water is thus thrown upon the plaintiff’s land than otherwise would be there but for the construction of the defendants’ drains and sewers, then the defendants are liable to the plaintiff for whatever damages he may have sustained thereby, although the water may run in its natural course in the drains and sewers so constructed by the defendants. If, by the introduction of an increased quantity of water into the city by means of the canal, when added to the natural fall of water thereon, the drains and sewers constructed by the defendants to carry off such water cause a greater quantity of water to be thrown on to the plaintiff’s land than would otherwise be there, it is a nuisance, for which he may maintain his action for damages.

A nuisance, as defined by the law, is anything that worketh hurt, inconvenience or damage to another, and the fact that the act done may otherwise be lawful does not keep it from being a nuisance: Code, 2949. The alienee of the person owning the property injured may sue for a continuance of the nuisance: Code, 2950. As was said by Lumpkin, Judge, in Bonner vs. Wellborn, 7 Georgia Reports, 327, “ so jealous and guarded have been the Courts relative to this matter, that they have steadily ruled that a person never can, by prescription or otherwise, acquire a right to maintain a nuisance.” The principle of the law applicable to such cases is, that a continuance of the nuisance constitutes a new cause of action, from clay to day, so long as the nuisance continues to exist, in favor of the party injured thereby.

The Court also charged the jury, “that it was the duty of every municipal corporation to keep open its drains and sewers, and that if damage ensued from the flowing of water therefrom in its natural, course, the defendants were not liable.” This charge of the Court, as applicable to the facts of the case, was, in my judgment, error. The latter part of it ignores the real question in issue between the parties, to-wit : Whether the defendants, by the construction of their drains and sewers to carry off the water from the city, had thrown a greater quantity of water upon the plaintiff’s land than otherwise would have been there; but the Court in effect told the jury, that if damage ensued to the plaintiff from the flowing of water from the defendants’ drains and sewers, in its natural couibe therein, the defendants were not liable, whether the quantity of water thrown on the plaintiff’s land was increased thereby or not.

The Court further charged the jury, “that if the defendants caused any damage by turning off the water of the Augusta canal through the drains of the city, they were responsible therefor, but that they were not liable for any damage caused by overflowing the banks, or for discharging the waters to avoid overflow.”

This charge, in my judgment, was also error, and calculated to mislead the jury. The effect of the charge was to tell them that the defendants might discharge the water through their drains upon the plaintiff’s land, to avoid an overflow of the same caused by turning off the water of the Augusta canal through the drains of the city, without being liable for any damages. It is true, the Court did not tell the jury, in so many words, that the defendants might discharge the water which run in their drains from the Augusta canal on the plaintiff’s land, to prevent an overflow of their drains, without being liable for damages; but where else was the water to be discharged, according to the facts in the case, if not on the plaintiff’s land? It was the duty of the defendants, when they undertook to construct drains and sewers for the purpose of carrying off the water from the city, so to construct and manage the same as not to overflow the land of other people, and if they failed to construct their drains of sufficient capacity to do so, they certainly had no legal right to discharge the water on the plaintiff’s land to avoid an overflow of their own drains. According to the general principles of the law applicable to the facts of this case, as I understand them, the defendants (a municipal corporation) were bound so to construct and manage their drains and sewers for the benefit of the city as to carry off the water therefrom without injury to the rights of others; and if, by the unskillful construction of such drains and sewers, or by the negligent management of the same by the defendants, their agents, or servants, injury and damage results therefrom, they are liable for such injury and damage. The main eontroling question in this case is, whether the plaintiff has been injured and damaged by the defendants in consequence of having a greater quantity of water thrown upon his land by the defendants’ drains and sewers, for the benefit of the city, than would otherwise be there if such drains and sewers had not been constructed to carry off the water from the city including that introduced by the Augusta canal, under its present management by the city authorities. Although, in my judgment, there is a preponderance of evidence in favor of the plaintiff, still I would not disturb the verdict, but for the errors in the charge of the Court to the jury; the case was not fairly submitted to the jury under the law applicable thereto.

Let the judgment of the Court below be reversed.