Watkins v. Cobb County Commission , 135 Ga. App. 324 ( 1975 )

Stolz, Judge.

The plaintiffs, husband and wife and residents of Cobb County, sued the Cobb County Commission, a Fulton County developer (Cobock Corp.), and Cobock’s surety (Aetna Insurance Co.) for damages arising out of sewage overflowing into their home when Cobock, while making a tie-in from its condominiums to the county sewerage system authorized by a permit from the commission, allowed some adhesive-sealant to get into the tie-in, thence blocking the sanitary sewerage system and making it overflow into the storm sewerage system, thence onto the plaintiffs’ property. The alleged basis of the commission’s liability is that it "was at all times legally responsible for the supervision and control of Cobock Corporation’s use of said public sewer and is therefore liable for its failure to so act.” Upon the commission’s motion for summary judgment, it appeared that the commission removed the blockage from the sewerage system on the same day it occurred. The plaintiffs appeal from the grant of the summary judgment. Held:

" 'The construction, installation and maintenance of a sewer-drainage system (including that for surface water) is a governmental function of the city... "It seems well settled in this State that in the negligent performance of its governmental duties a municipal corporation is not liable in damages to one who is injured while the municipality is engaged in the performance of such duties.” ...’.. .[A] municipal corporation can nevertheless be held liable with respect to these activities on the theory of nuisance... and on the theory of taking or damaging for public purposes without just and adequate compensation being first paid. . .” Turk v. City of Rome, 133 Ga. App. 886 (1, 3) (212 SE2d 459) and cits. The fact that the present suit was brought against a county rather than against a city makes no difference, for " 'under [the constitutional provision] cities, counties, and all other public organizations . . . are all upon an equal footing. . .’ Barfield v. Macon County, 109 Ga. 386, 387 (34 SE 596).” Richmond County v. Williams, 109 Ga. App. 670, 674 (137 SE2d 343).

Argued April 9, 1975 Decided May 8, 1975 Rehearing denied July 3, 1975 Jesse M. Cleveland, Jr., for appellants. Robert J. Grayson, Ward D. Hud, for appellees.

No action was authorized on the theory of nuisance, since the evidence shows that the condition was abated promptly by the defendant county. See Baranan v. Fulton County, 232 Ga. 852, 854, 855 (209 SE2d 188) and cits. Cf., Gleaton v. City of Atlanta, 131 Ga. App. 399, 402 (3) (206 SE2d 46) and cits.

Nor was an action authorized on the theory of taking or damaging for public purposes. "While the constitution declares that private property shall not be taken or damaged for public use without just compensation, the taking or damaging referred to must be by some authority empowered by law to do those acts; and before a recovery can be had against a county for taking or damaging private property, it must be shown that the proper authorities of the county were responsible for the taking or damaging, or that they ratified it after the property was so taken or damaged.” (Emphasis supplied.) County of Bibb v. Reese, 115 Ga. 346, 347 (41 SE 636). No public use or purpose was involved here, but merely the tying-in of a private development into the public sewerage system by the private developer. The developer, not the the county, was responsible for the "taking or damaging,” and the commission, rather than ratifying the act, moved swiftly to repudiate it and correct its resulting damage.

Accordingly, the trial judge properly granted the summary judgment in favor of the defendant county commission.

Judgment affirmed.

Bell, C. J., Quillian, Clark, Webb, and Marshall, JJ., concur. Panned, P. J., concurs in the judgment. Deen, P. J., and Evans, J., dissent.