Smith v. Dallas Utility Co. , 27 Ga. App. 22 ( 1921 )

Broyles, C. J.

(After stating the foregoing facts.) Section 3634 of the Civil Code of 1910 makes it lawful for corporations or individuals, who own or control lands upon opposite sides of any non-navigable stream in this State, to construct and maintain a dam across the stream for the development of water-power and other purposes. This right, however, does not release such individuals or corporations from liability for damage to private property, resulting from the construction and operation of such dam, either by overflow or otherwise. The plaintiff in this case therefore was obviously entitled to-compensation for the damage to her lands resulting from the overflow of the creek caused by the building off the dam in question. But who was 'liable for this damage and what was the plaintiff’s remedy? The dam, which the plaintiff testified was the cause of her damage, was not constructed by the defendant, but was built by its predecessor in title 8 or 9 years prior to the bringing of this suit. This brings us to the controlling question in the case, to wit, was the plaintiff’s right of action barred by the statute of limitations? The construction of the dam being authorized by law, and it being properly constructed and maintained, and the plaintiff being entitled, under the law, to compensation for whatever damage she may have received, her right of action accrued upon the completion of the dam and the infliction of the injury to her property; and, it being the statute law of this State, that “ all actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues” (Civil Code, § 4495'), and the undisputed evidence showing that the dam — the cause of the damage to plaintiff’s realty — was erected, and the damage to her lands inflicted, more than four years prior to the bringing of this suit, her right of action was barred by the statute of limitations.

The plaintiff contends, however, that her right of action was not so barred, because, she insists, the defendant was maintaining an abatable and continuing nuisance after notice to abate the same. While it is true that every .continuance of a nuisance not permanent and which can and should be abated is a fresh nuisance for which a new action will lie (Southern Railway Co. v. Morris, 119 Ga. 234, 46 S. E. 85), the facts of the instant case fail to bring it under that well-settled rule of law. In the first place, the dam in question was not, in contemplation of law, a nuisance The undisputed evidence shows that the construction of the dam was authorized by law, and that it was properly constructed and maintained. This being true, it cannot he adjudged a nuisance. See Central Georgia Power Co. v. Ham, 139 Ga. 569, 573 (77 S. E. 396, 398), where the Supreme Court said: “As the dam and plant of the Power Company were located and constructed by authority of law, they cannot be adjudged a nuisance if constructed and operated in a proper manner.” The case of Georgia Railroad & Banking Co. v. Maddox, 116 Ga. 64 (4) (42 S. E. 315), is also authority for the same proposition, it being there held that, “ where a railroad terminal yard is located and its construction authorized under statutory powers, if it be constructed and operated in a proper manner, it cannot be adjudged a nuisance.” As the dam in the instant case cannot be adjudged a nuisance, it necessarily follows that the defendant was not guilty of maintaining a nuisance. In the second place, even if it could be held that the maintenance of the dam amounted to a continuing nuisance, the facts of the case show beyond question that the dam was necessarily permanent, and that the nuisance was not abatable, and, therefore, there could be no fresh nuisance for which a new action would lie. A dam and its appurtenances, constructed for the development of electricity and the distribution of it to the public for light, heat, and power, is a public improvement within the meaning of the law (Jones v. North Georgia Electric Co., 125 Ga. 618, 54 S. E. 85, 6 L. R. A. (N. S.) 122, 5 Ann. Cas. 526; Nolan v. Central Georgia Power Co., 134 Ga. 201, 67 S. E. 656); and where it has been properly constructed and maintained, the law will not compel its destruction because of damages flowing from its maintenance. The alleged nuisance — the dam — -being permanent, and therefore not abatable, it follows that the damage to the plaintiff’s land was also permanent, and, under such circumstances, it is the settled law of this State that all damages, past and prospective, must be recovered in a single action, and thereafter no other action therefor can be maintained. See Central Georgia Power Co. v. Stubbs, 141 Ga. 177 (80 S. E. 636), and cases cited.

The cases cited and relied upon by counsel for the plaintiff in error are clearly distinguishable by their facts from the instant case.

The constitutional questions argued in the brief of 'counsel for the plaintiff in error cannot be considered, either by this court or the Supreme Court, as it does not appear from the record that any of those questions were raised in the trial court. Bolton v. Newnan, 147 Ga. 400, (94 S. E. 236).

It follows from what has been said that the court did not err in holding that the plaintiff’s right of action was barred by the statute of limitations and in directing a verdict' for the defendant.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.