Clark v. Lanier , 104 Ga. 184 ( 1898 )

Fish, J.

The question for consideration is, whether the recovery in the former suit was a bar to the last action. By comparing the two petitions, which are fully set forth in the reporter’s statement of the case, it will be seen that, with the exceptions that the first petition prays for equitable relief and the second does not, and the difference between the amounts of damages sued for, the two suits arepdentically the same. As there was no evidence whatever introduced upon the trial of the last case to support the allegations with reference to damage to the plaintiff’s home, by reason of injury to its healthfulness, etc., our inquiry will be confined to the question, whether the recovery by the plaintiff in the first suit debarred her from recovering in the second one for damages to the land and timber. We are clearly of opinion that it did. In the first suit it was alleged that, in consequence of the erection and maintenance of the dam by the defendant, certain described land of the plaintiff and the timber thereon had been rendered worthless and of no.value, “in all to her damage $1,000.00,” for which she prayed judgment. These allegations made this first suit an action for the recovery of the entire damages, resulting to the plaintiff’s land and timber described in the petition, by reason of the erection and maintenance of the dam by defendant. The nuisance and the damage inflicted thereby were treated as permanent, and when plaintiff recovered in such action, her right to maintain another suit for damages from the same cause to the same property was barred. The jury, under the evidence, was bound to find that the causes of action in the two cases were identical. Counsel for plaintiff in error cites the case of Danielly v. Cheeves, 94 Ga. 263. The principle governing the case at bar is expressly recognized there; for Justice Lumpkin said: “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.” He also said in that case: “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.” Following that rule, we now hold that the petition of Mrs. Clark, in her first suit, substantially alleged that the effect of the erection and maintenance of the dam by the defendant was to render worthless and valueless the land and the timber. If this were true, then even abating the nuisance would not have restored worth and value to the land and timber; and as in the first action she sued for the entire damage to the property, her recovery therein must be a bar to any subsequent suit by her against the defendant for the same damages. See Troy v. Railroad Co., 3 Fost. (N. H.) 83; also, City Council of Augusta v. Lombard, 101 Ga. 724, where many cases are cited sustaining the principle controlling the case at bar. There was no error in the charge complained of, the verdict was demanded by the law and evidence, and the court did right in overruling the motion for a new trial.

Judgment affirmed.

All concurring, except Cobb, J., absent.