City Council of Augusta v. Marks , 124 Ga. 365 ( 1905 )

LumtKIN, J.

(After stating the facts.) If by reason of a trespass upon realty it has been so injured as to render it permanently useless and valueless to the owner,, he should recover the damages thus occasioned in a single action. Thus where a petition alleged that by the erection and maintenance of a dam certain land of the plaintiff and the timber thereon had been rendered worthless and of no value, and a recovery was had, the plaintiff could not maintain against the defendant another action again alleging the same facts as to the injuries sustained and their cause. Clark v. Lanier, 104 Ga. 184; Allen v. Macon R. Co., 107 Ga. 839. But if the nuisance was of such a character as could be abated and terminate the injury, the plaintiff would not be limited to a single action resulting from its creation, but might sue for injuries resulting from its maintenance. In that event, if he so desired, he might bring successive suits for damages resulting up to the time of bringing each suit, provided they were not covered by a former action and were within the statute of limitations. Massengale v. Atlanta, 113 Ga. 966; Southern Ry. Co. v. Cook, 117 Ga. 286; Langley v. Augusta, 118 Ga. 590; Southern Ry. Co. v. Morris, 119 Ga. 234. Although the nuisance may have been created more than four years before the action was brought, if it be maintained as a continuing nuisance, •this is a renewal oí the wrong, and therefore actionable. Reid v. Atlanta, 73 Ga. 523; Smith v. Atlanta, 75 Ga. 110. Under the allegations of the declaration in the present case, whether or not the sewer was constructed through the plaintiff’s lot more than four years before the action was brought, if the defendant maintained a continuing nuisance by using it for sewage, fecal matter, and filth, instead of merely for waste water, the plaintiff could sue for damages resulting therefrom.

It is contended that an alienee could not sue for damages accruing while the property was owned by the alienor. This is true, but “the alienee of a person owning the property injured may sue for the continuance of the nuisance.” Civil Code, §3862. It does not appear from the declaration that there has been any alienation since the nuisance began. The defendant, however, is entitled to be put on reasonable notice as to what is claimed by the plaintiff. The declaration alleges that the sewer was built through the lot of the plaintiff; that it has been-and is being maintained as a continuing nuisance discharging filth, excrement, and foul matter near Ms house; that by reason of the “existence of said sewer and said dumping station” the health of his family has been greatly impaired, and he has been forced repeatedly to close up his home and find another place of residence; that the market value of his property has depreciated in the sum of $3,500, and that his total damages aggregate $5,000. Certainly the defendant is entitled to know when the sewer was constructed and for how long a time the plaintiff cjaims that he has been receiving the continuing injuries alleged by him, affecting the health of his family and damaging the lot as a place of residence. In Bond v. Central Bank, 2 Ga. 100, it was said: The writ “must allege all the circumstances necessary for the support of the action, . . and the time and place, with such precision, certainty, and clearness that the defendant, knowing what he is called upon to answer, may be able to plead a direct and unequivocal defence.” In Kemp v. Central Ry. Co., 122 Ga. 559, it was said: “The more liberal the law in the allowance of amendments, and the less the necessity for formalities in pleading, the greater the right of the defendant by special demurrer to call for a full statement of the facts out of which the plaintiff’s cause •of action arises.”

The act of 1899 (Acts 1899, p. 74) declares that no person having a clairii for money damages against any municipal corporation, on account of injuries to person or property shall bring suit at law or in equity against such corporation for the same without first presenting in writing such claim to the governing authority of said municipality for adjustment, “stating t]ie,time,.place, and extent of such injury, as nearly as. practicable, and, the negligence which caused the same; and no suit shall be entertained by the courts-against such municipality until the cause of action therein” has-been so presented. Thirty days are allowed the corporation to act upon the claim. A declaration based on such a c.ause of action-must allege a substantial compliance with the act. But it is not necessary to annex a copy of the demand. Saunders v. Fitzgerald, 113 Ga. 619; City of Columbus v. McDaniel, 117 Ga. 823. The ground of demurrer referring to this subject is because “said petition has not annexed to it a copy of the petition filed with the said City Council of Augusta, in accordance with the act of December 20, 1899,' . -. and that this defendant, not having said petition, to said City Council of Augusta annexed to this suit, can not state-whether the same grounds alleged in the petition to council appear in this action, nor whether-the time, or place, or the extent of the-injury correspond.” -This ground does not raise the question as to-whether the allegations in regard to the demand are sufficient, but merely-whether a copy of the demand should not have been attached to the declaration so that the defendant might compare it with the-allegations. It being unnecessary to attach a copy, as stated above,, this ground was properly overruled.

An allegation that the market value of plaintiff’s property had depreciated in the sum of $3,500 was subject to special demurrer.. The defendant was entitled to know what was claimed to have been.' its value before the- injury was done, and the ground of the demurrer raising this point should have been sustained.

The general demurrer was properly overruled. Some of the-grounds of the special demurrer should have been sustained as indicated in this opinion.

Judgment reversed.

All the Justices concur.