Neese v. City of Atlanta

Brotles, C. J.

1. “The duties of municipal authorities in adopting a general plan of drainage, and in determining when, where and of what size [italics ours] and at what level drains or sewers shall be built, are of a quasi-judicial nature, involving the exercise of deliberate judgment and wide discretion; and the municipality is not liable for an error of judgment on the part of the authorities iu locating or planning such improvements.” Harrison Co. v. Atlanta, 26 Ga. App. 727 (107 S. E. 83), and cit.

2. The duty of a city to maintain its sewerage-drainage system in a good working and sanitary condition is a governmental function. Such maintenance of a sewerage system has reference to the preservation of the public health, and this court will take judicial notice of that fact. City Council of Augusta v. Cleveland, 148 Ga. 734 (98 S. E. 345).

3. The petitions of the two plaintiffs, properly construed (most strongly against them), fail to show that their damages were caused by the city’s negligence in constructing the sewerage-drainage system, or by any subsequent negligence thereafter, but, on the contrary, disclose that the damages sued for were caused by an error of judgment of the city authorities, while planning the drainage system, in determining the size of the drains and sewers, the petitions alleging that they were “too small to carry off the natural flow of the water at this intersection.” While the petitions contained some other allegations of negligence, as to the city allowing the system to become “clogged and stopped up with water for several hours at a time,” yet, when all the allegations of negligence are construed in the light of the -facts stated in the petitions, it clearly appears that the damages claimed were caused by reason of the fact that the sewers and drains were not large enough to properly carry off the natural rainfall. In other words, according to the petitions (construed most strongly against the plaintiffs), the small size of the drains and sewers was the sine qua non of the damages sustained. The case of Bass Canning Co. v. Milledgeville, 174 Ga. 222 (162 S. E. 687), is distinguished by its particular facts from this case. In the Bass case, the construction company employed by the City of Milledgeville built up a sewer “into which the surface-water from the street had theretofore drained, so as to raise the mouth of the sewer about four feet, converting the open perpendicular drain sewer into a closed manhole, and leaving no opening into which the surface-water accumulating on the street could drain [italics ours].” Obviously there is a wide difference between an error of judgment in making a drain opening into a. sewer too small to carry off the surface water, and the unaccountable failure to make any opening at all for such a purpose.

4. Under the foregoing rulings, neither of the petitions set out a cause of action against the city, and both were properly dismissed on general demurrer.

Judgment in each case affirmed.

Lulce, J., concurs.