Holbrook v. Town of Norcross , 121 Ga. 319 ( 1904 )

Cobb, J.

1. There is language in the first count which would indicate that it was the intention of the pleader to bring the action as for a continuing nuisance, and there is also language which would indicate that it was his intention to bring it for a permanent injury to the property as a consequence of the work done in 1892. The concluding words of the count, which lay the damages, and allege that the value of the property has been greatly lessened in a stated sum, would indicate that the purpose of the pleader was to sue for a permanent injury to the property as the result of the original wrongful acts committed at the time stated in the count. The plaintiffs can not complain if that construction most favorable to the rights of the defendant is placed upon the count. When so construed, the count will be held to be one for a permanent injury resulting from the original wrongful acts; and hence it was not erroneous to charge that the cause of action set forth in the first count of the petition was barred by the statute of limitations.

2. In charging the law in reference to the second count, the judge told the jury, in substance, that it was the duty of the plaintiffs to have controlled the water falling on their premises, and that if damage to the hotel building was caused by water falling from the plaintiffs’ roof, they could not recover. This charge is assigned as erroneous, for the reason that it is not applicable to the facts. There was evidence from which the jury could find that the water from the roof of the hotel had been accustomed to fall upon the sidewalk and run into the street and be carried off in that manner; that the town authorities had caused the sidewalk around the hotel to be raised; and that the effect of this was to throw the water falling from the roof back upon the building, thereby damaging the property. The general rule is that when one is injured by the negligence of another, the injured party is bound' to lessen the damages as far as practicable by the use of ordinary care and diligence; but this rule does not apply in case of a positive tort. Civil Code, § 3802. In Athens Manufacturing Company v. Rucher, 80 Ga. 291 (4), it was distinctly held that whenever the right to enjoy one’s property to its fullest extent is invaded, and injury results therefrom, he may recover any damages sustained by reason of such invasion, and he is not bound to do anything to avoid the consequences thereof. See also Satterfield v. Rowan, 83 Ga. 187. The act of the Town of Norcross, in causing the water falling from the plaintiffs’ roof to run back upon their property, instead of passing off in the manner in which it had been accustomed to flow, was a direct invasion of the plaintiffs’ property rights, and similar to the acts which were complained Of in the two cases cited. . The charge was erroneous, and the error was of such a character as. to require the granting of a new trial.

Judgment reversed.

All the Justices concur.