Trax, Inc. v. City of College Park , 235 Ga. 835 ( 1976 )

Nichols, Chief Justice.

The City of College Park filed the present action against Trax, Inc. and Hayne D. McCondichie to enjoin them from maintaining an obstruction to the natural flow of water through Sullivan Creek across defendants’ land in such manner as to interfere with the natural drainage of water from plaintiffs’ land, and to require the defendants to remove the obstruction and restore the bed and banks of said stream to their original condition to the extent necessary to restore the natural drainage of water from plaintiffs’ land. Upon the final trial of the issue thus made and at the conclusion of the evidence, the trial court directed a verdict for the City of College Park, and it is from the judgment thereon that the present appeal is filed.

Submitted November 7, 1975 Decided January 7, 1976. Doss & Sturgeon, Gregory W. Sturgeon, for appellants. Glaze, Glaze & McNally, George E. Glaze, for appellee.

1. Sullivan Creek was a part of the surface water drainage system for the City of College Park. Under decisions exemplified by City of Macon v. Douglas, 45 Ga. App. 798 (165 SE 922) (1932) it was the duty of the City of College Park to take needed steps to maintain the flow of water in such creek whenever it became known that changes had occurred which would reduce the flow of water so that flooding of public or private property adjacent thereto was apt to occur, which flooding would constitute a nuisance.

2. On the trial of the case the president of Trax, Inc. (and the owner of the land) did not deny having placed the obstruction in Sullivan Creek, but rather attempted to justify placing such obstruction in Sullivan Creek on the basis of economic necessity and claimed that such obstruction did not have the effect claimed by the city. An examination of the evidence adduced discloses that such obstruction was the major, if not the sole, proximate cause of potential upstream flooding.

Accordingly, the trial court did not err in directing a verdict for the plaintiff City of College Park.

Judgment affirmed.

All the Justices concur.