Danielly v. Cheeves , 94 Ga. 263 ( 1894 )

Lumpkin, Justice.

Several actions which had been instituted by Danielly against Oheeves were consolidated in the superior court. This litigation originated from the same cause as that which was the foundation of the lawsuit between these same parties, reported in 80 Ga. 114. The official report consists of a statement showing how the various questions now presented for adjudication arose in the ■court below. The rulings of this court have been condensed into the propositions announced in the head-notes.

1. There was no merit in the exceptions pendente lite filed by defendant’s counsel to the allowance of the amendment of February 11th, 1898, to the plaintiff’s declaration of August 5th, 1884. That declaration complained that the plaintiff’s land was rendered almost worthless for cultivation during two specified years. Taking a fair view of all the allegations contained in the amendment, it may be properly construed as claiming additional damages upon the theory that the nuisance which gave rise to the damages alleged in the declaration had rendered the premises totally useless for cultivation during the two years mentioned. Thus construed, the amendment is consistent with the original plan and purpose of the declaration, the object of which was to recover damages with reference to crops for these two particular years, and not to recover permanent or prospective damages. It is true that the pleader, iu the amendment, designated it as a count”; hut this was a mere misnomer and is of no material consequence. In the argument here, the counsel at whose instance this amendment was allowed seemed to construe it as not being confined to damages relatively to crops only for the two years specified in the declaration, but as extending to and comprehending damage to the land itself for all the time elapsing after the year 1881. In taking this position, the counsel was seeking to show that the purpose of the amendment was to make it clear that the permanent injury to the land had not occurred at the time of the filing of the first suit against Cheeves. Were we to give the amendment the construction just indicated, we would be constrained to hold that it introduced a new cause of action, and should have been disallowed; but we do not think that construction would be the proper one, and it is our duty to shape our judgment in accordance with our own opinion as to the real nature of the amendment, which is as stated above. So doing, no' reason for reversing the judgment allowing the amendment appears, and therefore the exceptions pendente lite are overruled.

2. After a careful examination and study of each and all of the consolidated declarations, we are of the opinion that, properly construed, they should be treated as claim-damages for successive years, and none of them as proceeding for permanent or prospective damages. It is true they contain expressions which would seem to indicate the latter purpose; but viewing them all together,, we think it more consistent with truth and fairness to hold that the object of each and all of them was to recover for losses sustained in successive years because of the fact that the plaintiff’s land was rendered unfit for cultivation, and for that reason he was unable to make crops upon the same. The declaration of 1888-alleges that the plaintiff has already filed his suit for damages for the years up to 1888, and that by the cutting of the ditch he has lost his crops for the years 1884,1885,1886 and 1887, of the yearly value of $500.00. The declaration of 1889 alleges that the plaintiff has already brought suit for damages for the years up to 1888, and that he has been deprived of his land for cultivation and is no longer able to make crops thereon, and claims damages to the amount of $500.00 for the year 1888. It does not appear that in any of the suits the plaintiff seeks to recover the value of his land upon the theory that it had been rendered totally worthless for all purposes and consequently was of no value whatever. Some reason for concluding that this was not the plaintiff’s theory may be drawn from the fact that he did not at once, and long prior to the year 1889, bring a suit for the total value of the land.

3. The third head-note, in connection with what has already been said, is comprehensive enough to render unnecessary a restatement of its contents; and upon the doctrine there announced, it is evident that the statute of limitations has no application whatever to the several actions, if the plaintiff succeeds by evidence in maintaining them as laid. Until it has been definitely established by the defendant that the abatement of the nuisance would in no way improve the land or ameliorate its existing condition with reference to the production of crops, the plaintiff has the right to assume that the nuisance will be abated, and to recover year by year for the injury done him by its maintenance. If, however, at any period in the past, the effect of the nuisance has been to destroy wholly and permanently the fertility of the land, so that even abating the nuisance would not restore the land and render it again fertile and fit for cultivation, the right to maintain successive actions relatively to subsequent years ceased at that period. With reference to this question, we are not, of course, prepared to say what the evidence may disclose, and we intimate no opinion concerning it, one way or the other. But it is a question which ought to be developed and elucidated at the next trial.

4. It is quite clear that in adjudicating upon a demurrer to a declaration, or a series of declarations which, have been consolidated for trial, the court cannot properly take notice of a declaration previously filed by the same plaintiff against the same defendant touching the same subject-matter. A declaration, when demurred to, must stand or fall upon its own merits. This is true, although the declaration in hand may refer in general terms to the one previously filed. If the contents of the declaration last referred to were set out substantially or in full in the pending declaration, the question would be different. Otherwise, the existence and contents of the former declaration should be taken advantage of, in so far as it may avail the defendant, by plea, for it cannot be properly urged by way of demurrer.

Judgment on main bill of exceptions reversed,.

On exceptions pendente lite, affirmed.