Godfrey v. County of Jefferson , 21 Ga. App. 384 ( 1917 )

Wade, C. J.

(After stating the foregoing facts.)

It is only necessary to consider that ground of the demurrer which attacks the petition as being barred by the provisions of section 411 of the Civil Code, which declares: “All claims against counties must be presented within 12 months after they accrue or become payable, or the same are- barred,” etc. The claim was not otherwise “presented” within twelve months; but it is contended by counsel for plaintiff that the code section was complied with, because her suit was filed and legally served-upon a majority of the county commissioners within 12 months after the cause of action arose. It is now well settled that when such a suit is filed and legally served upon the defendant within. 12 months after the cause of action accrues, this constitutes a sufficient presentation of the claim in writing to meet the requirements of this section (see Dement v. DeKalb County, 97 Ga. 733, 25 S. E. 382; Pearson v. Newton County, 119 Ga. 863,47 S. E. 180; Troup County v. Boddie, 14 Ga. App. 434, 81 S. E. 376); but, under the particular facts alleged in the petition, we can not agree that such a presentation of the claim was made in this case, since the real cause of action arose more than 12 months prior to the filing and service of the suit. The filing and service of the suit being the only demand for the settlement of the claim presented in writing to the county commissioners, the sole question for determination is when the plaintiff’s cause of action accrued. The record establishes the fact that the petition and process were properly served upon the defendant on the 22d day of April, 1916. However, the plaintiff alleges in her petition that during the year 1913 the county authorities, in order to widen a certain public road, confiscated and appropriated for that purpose at least one half of an embankment on her lands lying parallel to the road; and further, that during the month of May, 1915, the embankment, in consequence of the acts of the county authorities committed in 1913, yielded under pressure of the water which had accumulated at that point, and gave way, .and permitted a large volume of water to overflow plaintiff’s lands, to her damage. From this it is clear that if the cause of action arose in the year 1913, the service of the petition on the 22d day of April, 1916, was too late to suffice as a compliance with section 411, supra; but if the cause did not accrue until May, 1915, the claim was duly presented within the time prescribed by the statute, by the filing and service of the suit within 12 months thereafter, and the action would not be barred.

The Civil Code, § 4457, declares: “A nuisance is anything that ' worketh hurt, inconvenience, or damage to another; and the fact that the act done máy otherwise be lawful does not keep it from being a nuisance,” etc. Applying this section to the plaintiff’s petition, it is clear that the injuries complained of and the causes thereof are set forth in such a manner as to charge the existence of a nuisance. It is also obvious from the allegations.that the defendant committed a trespass upon the rights of the plaintiff when it appropriated the earth from the embankment, and also created a nuisance in the year 1913, which caused the water to accumulate on the plaintiff’s land. However, other than the creation of this nuisance during the-year• 1913, the petition fails to allege any' act which even tended to bring about the injuries sued for, except a natural cause which occurred in 1915, — a heavy rainfall. In the absence of any allegation to the effect that the defendant had notice of the existence of the nuisance and after such notice failed and refused to abate the same, it can not be said that the defendant was maintaining the nuisance. Of course, had the defendant maintained the nuisance, a cause of action would have existed therefor. Likewise, had the allegations in the petition disclosed that the nuisance originally created by the defendant was of a continuing character, of which the defendant had notice, ánd which could and should have been abated, an action might lie to recover damages for its maintenance. See, -in this connection, Bonner v. Welhorn, 7 Ga. 296, 327; Phinizy v. Augusta, 47 Ga. 260, 266; Gabbett v. Atlanta, 137 Ga. 180 (70 S. E. 372); Nalley v. Carroll County, 135 Ga. 835 (70 S. E. 788); Atlantic Coast Line R. Co. v. Knapp, 139 Ga. 422, 427 (77 S. E. 568). The petition, properly construed, clearly shows a trespass and the creation thereby of a private abatable nuisance by the county, but fails altogether to allege that anything was done towards the maintenance: thereof, since to maintain a nuisance ordinarily requires some affirmative act, or a refusal to act, after knowledge of the existence of the nuisance; and there were no allegations to this effect in the petition under review. See Southern Ry. Co. v. Cook, 106 Ga. 450, 456 (32 S. E. 585). The plaintiff could unquestionably have recovered damages for the appropriation by the defendant of her land, by complying with the terms of the Civil Code, § 411, in presenting her claim to the proper county authorities within 12 months after its accrual in 1913, and by bringing suit in time. However, under our construction of the petition, the action was not to recover damages arising during the month of May, 1915, from the maintenance of the nuisance previously created by the defendant, but was for certain damages growing out of the original trespass committed in the year 1913; and therefore the fact that the suit was filed and legally served upon the defendant on April 22d, 1916 (more than a year after the right of action accrued in 1913), could not suffice to meet the requirements of code section 411, supra.

It can not be reasonably contended that a county can be held responsible in damages for injuries resulting from the maintenance of a private, abatable nuisance, of the creation or existence of which it has no notice, and which therefore it has had no opportunity to abate.

The court properly sustained the general demurrer; and it is therefore unnecessary to pass upon the special demurrers.

Judgment affirmed.

Jenkins and Luke, JJ., concur.