Smith v. City of Atlanta , 75 Ga. 110 ( 1886 )

Blandeord, Justice.

This was an action for damages, brought against the city of Atlanta, for digging a culvert across Hunter street, whereby the surface water from the lands of adjacent proprietors was gathered, charged with the filth of sinks and thrown upon the land of plaintiff, thereby producing noxious scents, sickness and great hurt and inconvenience to plaintiff. In a case growing out of this same transaction, Reid vs. City of Atlanta (73 Ga., 523), this court reversed the court below sustaining a demurrer to this declaration, and holding that this was a continuing nuisance. The plaintiff introduced evidence tending to establish the allegations in her declaration. Upon motion of defendant, the court awarded a non-suit, and this is excepted to by the plaintiff, and error assigned thereon.

1. It is contended that, as the city had the right to establish a system of “ grading and drainage” by its charter, it is not liable for damages done to private citizens if the same was done skilfully. With this' view we do not concur. The grading and drainage must be done so that the same will not prove a nuisance to the citizens, impairing the health of families and producing noxious scents, thereby rendering the enjoyment of their property impossible. If it be so done, the city will be liable for damages.

2. Again, the defendant in error insists by its able and learned counsel that, as the sewer was dug in 1870, and it had done nothing to it since that time, that plaintiff’s action is barred by the statute of limitations.

This sewer was and is under the control of the city; if it be a nuisance and the city has not abated it, no one else could; not having abated it, the city may be said to have maintained it and kept it up, and it is thereby a continuing nuisance, for the maintenance of which the city is liable.

The evidence submitted by the plaintiffs was sufficient to carry this case to the jury, and the non-suit was-therefore wrong.

Judgment reversed.