City of Rome v. Brown , 1936 Ga. App. LEXIS 443 ( 1936 )

ON MOTION FOR REHEARING.

Sutton, J.

The plaintiff in error (defendant in the suit) contends in its motion for rehearing, as it did in the original brief before this case was decided, that the petition did not allege that the plaintiff was the owner of the property at the time the defendant raised the street and sidewalk in front of his property. In the petition it was alleged “that petitioner is the owner and in possession of the house and lot known as 116 East 12th Street, City of Rome, being the place where petitioner resides; . . that during the fall of 1931 and winter of 1932 the defendant . . raised the street and sidewalk in front of said property;” that “since the raising of said street and sidewalk, after a rain the water stands for days on said property and until it sinks into the ground, causing said lot to be wet and damp at all times except in extreme dry weather;” . . “that said City of Rome was negligent in raising said street and sidewalk without putting in drains so as to take care of the water and prevent it from standing and ponding as alleged; and that the same is a continuing nuisance for which the defendant is liable.” The defendant filed a general demurrer; but no special demurrer was filed, raising the question of ownership at the time the street and sidewalk were raised. The petition certainly does not affirmatively show that the plaintiff was not the owner when the street and sidewalk were raised. It does allege ownership and possession by .plaintiff, and that the alleged injury to his property is a continuing nuisance. He could recover for any damage accruing to the property after he became the owner, where there was liability against the city on account of its alleged acts in respect to raising the street and sidewalk in front of this property. Langley v. Augusta, 118 Ga. 598 (45 S. E. 486, 98 Am. St. R. 133); Mayor &c. of Brunswick v. Tucker, 103 Ga. 233, 234 (29 S. E. 701, 68 Am. St. R. 92); Allen v. M., D. & S. R. Co., 107 Ga. 838 (33 S. E. 696). Under the case made by the petition, the question of plaintiff’s ownership of the property and when he acquired it is a matter to be determined by the evidence on the trial of the case.

The authorities cited by counsel for the municipality were not overlooked in the consideration of this case. All of these cases, except Allen v. M., D. & S. R. Co., supra, were dealing with the question of the evidence failing to show that the plaintiff owned the premises at the time of the damage thereto. In the Allen case, the question was raised by special demurrer; and the principle was announced that where the damage was occasioned by a continuing trespass, the plaintiff could recover only for damages to the property sustained after he acquired it. The cases cited by counsel for plaintiff in error are not applicable to or controlling of the question now presented, under the allegations of the petition. The motion for rehearing is denied.