Howard v. County of Bibb , 127 Ga. 291 ( 1907 )

Beck, J.

(After stating the facts.)'

1. The courts have given full recognition to the principle of law that the right of the owner of land through which a non-navigable stream flows, to have its waters come on his land in the natural and usual flow and unpolluted, is annexed to the soil and is parcel of the land itself, and comes within the constitutional provision which forbids the taking or damaging of private property for public purposes without just and adequate compensation being first paid. See City of Elberton v. Hobbs, 121 Ga. 749; Mining Co. v. Joplin, 124 Mo. 129. In the case at bar, however, the plaintiff does not seek to recover damages for injuries to the land, nor for injuries to any right of user or enjoyment of land, nor is it alleged that the land is less valuable now that it was formerly. The injury complained of in this case resulted from “the drinking of said [polluted] water by plaintiff’s milch cows,” in consequence of which “for a long time, for several months, plaintiff’s said dairy business was seriously injured and damaged, because of plaintiff having sent to market, to his customers, milk and butter, damaged as aforesaid, before his discovery of the exact conditions;” and, “because of said infected condition of the water from said stream, as-aforesaid, one of plaintiff’s valuable milch cows sickened and died from drinking said water.” The case as presented to this court depends upon the determination' of one question, and that is whether the county was liable, under the pleadings, for the loss resulting from said injuries.

“A county is not liable to suit unless there is a law which in express terms or by necessary implication so declares.” Millwood v. DeKalb County, 106 Ga. 743; Pol. Code, §341. The constitution (Civil Code, §5729) declares: “Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.” In referring to the above provision of the constitution, in the case of Peel v. Atlanta, 85 Ga. 138, this court held that “The effect of such provisions is not to' authorize compensation in all cases where the property may be injured by public works, but only where the enjoyment of some right, of the plaintiff in reference'to his property is interfered with and the property thereby rendered less valuable.” See- also, in this connection, White Star Line Steamboat Co. v. Gordon County, 81 Ga. 48. In the case of Pause v. Atlanta, 98 Ga. 103, it was said that “a distinction should be borne in mind between those cases where one seeks to recover because of the appropriation by the public, to the public use, of private property, and damages to one’s property sustained in consequence of the construction of such public improvement, and that other class of cases in which, though one’s property be neither appropriated nor damaged, yet in consequence of the construction of such an improve-' ment, one suffers damage resulting from personal inconvenience,, and consequent damage in the conduct of one’s business.” This distinction has been strictly adhered to by our court in all its decisions on the subject. See Bacon v. Walker, 77 Ga. 339; Smith v. Floyd Co., 85 Ga. 420; Campbell v. Metropolitan Ry. Co., 82 Ga. 320; Barfield v. Macon County, 109 Ga. 386. And in all of the decisions involving the liability of counties for damages caused by the construction of public improvements, the rule has been observed that the measure of damages is the actual depreciation in the market value of the plaintiff’s premises. See Smith v. Floyd, supra; Roughton v. Atlanta, 113 Ga. 948; City Council of Augusta v. Schrameck, 96 Ga. 426; Streyer v. G. S. & F. R. Co., 90 Ga. 56; City of Atlanta v. Green, 67 Ga. 386; Terrell County v. York, ante, 166.

In the case of Austin v. Ry. Co., 108 Ga. 671, Simmons, C. J., quotes the following language from Eicket’s case, L. R., 2 E. & I. App. Cases, 198 (cited in the Peel case, supra): “The damage must be to the land itself. . . Any other construction would open the doors to claims of so wide and indefinite a character as could not have been in the contemplation of the legislature.” And in discussing this proposition the learned Chief Justice says: “Irrespective of all the authorities cited, there is a view of this question arising out of the very language of the constitution itself, which lends great weight to that construction which limits the damages recoverable to those arising from taking the land . . or physically interfering with some right appurtenant thereto. . . In .requiring damages to be first paid . .. the conclusion is irresistible, that the constitution guarantees payment to those direct, immediate injuries which certainly, directly, and inevitably flow from the construction of the railroad, highway, or other public works.” It would seem, therefore, that if the construction of the public improvements resulted in contaminating the waters of the creek which runs through plaintiff’s land, and thereby decreased the value of the land, then the damage thus done would come within the constitutional provision, and the plaintiff would.be entitled to have compensation therefor, the measure of such damages being the diminished value of the land because of the pollution of the stream. But we can find no authority for going beyond this. And after a careful examination of all the authorities on the subject, we are of the opinion that the damages claimed by the plaintiff are not authorized, either in express terms, or by necessary implication from the above-quoted provision of the constitution (Civil Code, § 5729), and that there is no statutory provision for subjecting counties to actions for the recovery of damages such as are here sought to be recovered.

Cited by counsel for plaintiff: Civil Code, § 5729; 67 Ga. 386; 85 Ga. 420; 24 Am. & Eng. Ency. L. 979, 980, 981, 982; 22 Enc. Pl. & Pr. 1161, 1171; 83 Ga. 188(2); 2 Cur. L. 2035, 2038; 106 Ga. 747; 115 Ga. 767; 121 Ga. 442; 125 Ga. 329 (3, 5); Civil Code, §§ 3905, 3847, 3913, 3906, 3910, 3911; 19 Ga. 703; 67 Ga. 535; 72 Ga. 281; 80 Ga. 115; 67 Ga. 389; 78 Ga. 320; 75 Ga. 598.

Cited by counsel for defendant: Pol. Code, §341; 106 Ga. 747; 67 Ga. 390; 82 Ga. 320-327; 85 Ga. 139; 108 Ga. 671; Civil Code, §§ 3879, 3061, 3052; 98 Ga. 99; 121 Ga. 749; 85 Ga. 425; 90 Ga. 56; 98 Ga. 105.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.