Wetter v. Campbell , 60 Ga. 266 ( 1877 )

Warner, Chief Justice.

This case came before the court below on a certiorari to the proceedings had before two justices of the peace to abate an alleged nuisance under the provisions of the 4094th section of the Code. On the trial of the case the jury found a verdict in favor of the plaintiff. The defendant filed his petition for certiorari, alleging that certain specified errors were committed on the trial before the justices, which was sanctioned and came on to be heard in the superior court, when the judgment of the justices was sustained, and the certiorari dismissed. Whereupon the plaintiff in certiorari excepted.

The nuisance complained of was the erection of a dam by the defendant across “ Deep Creek,” in the county of Bryan, whereby the water in rainy weather was made to flow back upon the land of the plaintiff and others, located at a place known as “Port Royal,” in said county, causing said lands to be overflowed to the depth of four or five feet, destroying the growing crops of rice, and preventing further cultivation, and tending to the immediate annoyance of the citizens in general, and working hurt, damage, and inconven' ience to the plaintiff. The errors complained of here are that the court ex-red in deciding that the justices had jurisdiction to abate the alleged nuisance under the 4094th section of the Code, in dismissing the certiorari, and holding that the evidence befox-e the justices made out a case of nuisance against the defendant.

1, 2. The 3000th section of the Code declares, that “ a nuisance is anything that worketh hui’t, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful, does not keep it from being a nuisance.”' It appears from the evidence in the record, that the plaintiff and others (who are colored people) purchased their lands at Port Royal, which were suitable for the cultivation of rice, before the defendant erected the dam complained of; that before its ex-eetion, the baek-water did not injui-e their land, but now it affects all of them. In view of the evidence contained in the record, the justices of the peace had jurisdiction to abate the nuisance complained of upon the verdict of twelve freeholders of the county as provided by the 4094th section of the Code. Whether the erection of the dam by the defendant did work hurt, inconvenience, or damage to the plaintiff and the other larxd-owners at Port Royal, by causing the water to flow back upon their land, was a question for the jury under the evidence, as well as the effect produced by the plaintiff’s dealing out the canal or water coux-se before the dam was built. Thex*e is sufliciexit evidence in the record to sustain the verdict of the jui-y, therefore there was no error in dismissing the certiorari.

Let the judgment of-fhe court below be affirmed.