City Council of Augusta v. Dozier , 126 Ga. 524 ( 1906 )

Cobb, P. J.

(After stating the foregoing facts.)

The City of Augusta is the owner of the canal and the land upon which the body of water known as Lake Olmstead is situated. This land adjoins a public highway. The city therefore owes to travelers upon the highway the same duty that any owner of land adjoining a highway owes to travellers thereon. What is the duty of such an owner to travellers on an adjacent íiighway? An' owner of land abutting upon a highway is liable to travellers for injuries resulting from the maintenance of those things upon his property which are likely to render travel upon the highway unsafe. Many of the cases in which the rule is announced involved excavations on the land adjoining the highway, but the rule is of course not limited to cases where the injury resulted from an excavation. If the public lay out a highway so near a natural watercourse on the land of an adjacent proprietor that travel along the highway is rendered unsafe on account of the proximity of the stream, it may be that the owner of the stream would be under no obligation to erect rails or guards along the course of the stream; but when the owner creates and maintains upon his land an artificial lake or body of water so near the highway and so located relatively to the same that travel thereon is rendered unsafe, a duty to so guard the same that travelers in the exercise of due diligence will not fall or be precipitated therein devolves upon the owner. Hutson v. King, 95 Ga. 271 (3); 15 Am. & Eng. Enc. Law (2d ed.), p. 437, and cases cited. The distance from the highway to that which caused the injury will in many cases determine whether there was a duty to guard the highway. When the adjacent land is level or practically so, and that which caused the injury is so far removed that a traveller in the exercise of due care would not have been injured thereby, no duty to the traveller would arise. Where the laud is precipitous, a duty to the traveller 'arises in cases where under other conditions no duty would arise.

The edge of the lake was sixteen feet below the highway, and forty-five feet therefrom. The slope began at the edge of the highway, and about two thirds of the distance is a very sharp incline of forty-five to fifty degrees, and thence to the water’s edge about half that extent. The edge of the highway is protected at one place by a substantial fence, and at another place by large iron pipes; but between the points where the fence ends and the pipes begin there is a gap of thirty feet which is entirely unprotected, and is at the very .crest of a steep declivity extending to the water’s edge. This gap was at one time protected by a fence which had disappeared and had never been replaced. The husband of the plaintiff was walking along the highway at night, walked into the gap, was precipitated down the declivity into the lake, and was drowned therein. The averments of the petition were sufficient to raise a duty on the part of the city to guard the highway at the point where the deceased departed therefrom, and also to show that he was in the exercise of due care. Such being the case, a cause of action was set forth.

Judgment on main bill affirmed; cross-bill dismissed.

All the Justices concur, except Fish, G. J., absent.