Proudfit v. Burney Bros. , 32 Ga. App. 739 ( 1924 )

Stephens, J.

1. Where a gutter-pipe which drains the roof of a landlord’s building overhangs the roof of a lower building of an adjacent landowner, and by reason of a worn out and defective condition discharges water upon its roof, the landlord’s failure to repair the pipe so as to prevent such discharge of water is not the proximate cause of damage to the tenant from water leaking through from the landlord’s roof upon the tenant where the water had been caused to settle upon the roof by the act of the adjoining landowner in stopping up and plugging the opening from the landlord’s roof into the gutter. The landlord is not liable upon the principle that the intervening act of the adjoining owner in plugging the drains could have been foreseen, where the only notice that the landlord had of the immineney of such act was notice from the adjoining owner that he would, in the event of the landlord’s failure to repair the pipe, proceed to stop the water from damaging his property, and the notice did not intimate that in so doing the adjoining owner would plug the drain in the manner in which he did, or that he would so remedy the situation as to cause the water to settle on the landlord’s roof.

2. The notice given to the landlord by the owner of the adjoining building that the drain-pipe was in a leaking condition, and that if the landlord failed to repair it he would proceed to stop the water from damaging his property, constituted no notice of any future defect in the rented premises, afterwards created by ’the act of the adjoining owner in stopping the drain-pipe and causing water to accumulate on the landlord’s roof. Since the adjacent owner’s notice to the landlord of his intention to remedy the defect in the gutter-pipe, so as to prevent the water from damaging his property, was not notice of any existing defect in the rented premises, and contained no intimation that in so doing the landlord’s roof would be rendered defective, such declared intention was not sufficient to create any duty on the part of the landlord to anticipate that his premises would be rendered defective by any act of the adjacent owner. The landlord therefore was not placed under a duty to watch the actions of the adjoining owner in anticipation and apprehension that the latter would do some act to render the landlord’s premises defective.

3. Where under such conditions the landlord had no notice of the defective condition in the roof which caused the water to accumulate thereon to the tenant’s damage, the landlord owed no duty to the tenant, and the tenant had no cause of action against the landlord for damage caused to the tenant’s property by water leaking thereon from the roof. In a suit by the tenant against the landlord, to recover for such damage, the court erred in overruling the defendant’s general demurrer to the petition.

Judgment reversed.

Jenldns, P. J., and Bell, J., concur. Ryots & Anderson, for plaintiff .in error. E. 17. Maynard and Powers & Powers, contra.