Nazerian v. City of McCaysville

Birdsong, Presiding Judge.

The appellant, Albert Nazerian, Jr., brought this action against appellee, the City of McCaysville, alleging the city had committed a trespass on his property and breached a covenant to repair belonging to Nazerian under a sewer line easement granted him by the city.

Although Nazerian’s action was divided into eight counts, following the city’s motion for summary judgment, only two counts were submitted to the jury. These alleged, in substance, that Nazerian had given an easement to the city across his property for construction and maintenance of an underground sewer line and the city had agreed to construct the sewer in a workman-like manner, and any damage to Nazerian’s property would be repaired and his property left in good condition. Nazerian contended the city breached the agreement by destroying his apple trees, leaving rocks on his property, causing his topsoil to be washed away and generally leaving his property in such condition he could no longer grow a garden. The city alleged there was no damage to the land which was not repaired after installation of the sewer line.

Decided February 24, 1986. David E. Ralston, for appellant. Robert K. Ballew, for appellee.

In the second count, Nazerian alleged the city cut a road or street across his property without permission, but if there was a street there, it had been straightened and widened without his permission and because of such trespass he should be awarded damages. The city denied it cut a road across Nazerian’s property and contends it improved an existing street, Williams Street, which was a public thoroughfare, and that no trespass was made on plaintiff’s property and he was not damaged in any way.

The jury found for Nazerian on the first count and awarded him $1,225 in damages. The jury found for the defendant on the second count and their verdict was made the judgment of the court. Nazerian brings this appeal. Held:

Appellant has brought this appeal under the direct appeal procedure of OCGA § 5-6-34. Our code requires that appeals “in all actions for damages in which the judgment is $2,500.00 or less . . .” will be brought under the discretionary appeal procedure of OCGA § 5-6-35 (a) (6). This was an action for damages and OCGA § 5-6-35 (a) (6) applies to actions “in which the money judgment is one cent through $2,500.” City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986). The proper appellate procedure not being followed, this appeal must be dismissed. Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457 (339 SE2d 590) (1986).

Appeal dismissed.

Banke, C. J., and Sognier, J., concur.