Opinion
35436.
DECIDED FEBRUARY 18, 1955. REHEARING DENIED MARCH 18, 1955.
Damages. Before Judge Paschall. Whitfield Superior Court. September 21, 1954.
Malcolm C. Tarver, for plaintiff in error.
Mitchell Mitchell, Walton Whitwell, contra.
1. The judge did not err in the ruling on the demurrers.
2. The special grounds are not considered for the reasons given in the body of the opinion.
DECIDED FEBRUARY 18, 1955 — REHEARING DENIED MARCH 18, 1955.
B. R. Burleyson (whom we shall call the plaintiff), brought suit in the Superior Court of Whitfield County against Western Atlantic Railroad Company (hereinafter called the defendant). The plaintiff alleged that he was the owner of a described tract of land adjoining the right-of-way of the defendant lying south of a culvert constructed under the line of said defendant's property for the purpose of conveying thereunder the waters of what is known as Swamp Creek, 1510 feet north of a public road crossing said railroad, which is at the north line of the plaintiff's lands. He alleged that the original size of the culvert was not known, "but, even as originally constructed, it was insufficient in size to convey under said railroad the waters of said creek in times of heavy rains and that during the years that have elapsed since the original construction the approximately 13,000 acres of lands drained by said creek north and west of said railroad (which runs approximately north and south at said point), have been cleared for cultivation of the trees and other natural growth located thereon at the time of the construction of said culvert, and the flow of drainage water from said area has steadily increased and has added greatly from year to year to the volume of waters of said creek in times of heavy rains. Several years ago, the exact date being unknown to this plaintiff but well known to said defendant, the defendant inserted in said culvert a metal lining of approximately 14 inches in diameter, thus decreasing the opening in said culvert and its capacity to carry under said railroad the waters of said creek."
He further alleged the dimensions of the culvert, alleging an overall opening of 114 square feet; that the highway department has constructed a mile upstream from said culvert a bridge to provide for the passage of the waters of said creek with a waterway opening of 1200 square feet, "which is the dimension of an opening required by competent engineering standards to carry the waters of said creek at said point, and a larger opening would be required by said standards to carry said waters with the additional accumulation of waters above-described at the point where said creek passes under said railroad." The culvert is and has been for many years, and especially during the last four years, insufficient to carry the waters of the creek under the railroad in times of heavy rains; that the plaintiff owns a described tract of land, 40 acres of which, lying alongside the right-of-way of the defendant, are admirably suited for planting in grasses and grains for feeding cattle and could have been used by the plaintiff for that purpose, except for the facts alleged in the petition; that the plaintiff's lands are in use as a dairy farm, and his entire farm is of the reasonable value of $37,500; that by reason of the inadequate culvert the waters of said creek have been deflected from their natural course under said railroad in times of heavy rains at said culvert, and have flowed in great volume southward along said railroad and onto and over said described 40-acre tract of land; that the defendant had purchased from Robert R. Burleyson, predecessor in title of plaintiff, a described tract of land adjoining its right-of-way and adjoining the lands of plaintiff on July 28, 1944, and after purchasing it had constructed a channel along and substantially covering said tract from 6 to 8 feet in depth for the purpose of protecting the remainder of its right-of-way from damage from said creek; that said channel was insufficient in size to carry the flood waters of said creek in times of heavy rains; that the defendant could have constructed a levee on the southwest bank of said channel of sufficient height to contain said waters and prevent their overflowing upon the lands of the plaintiff, but has failed and refused to do so; that, "as a result, the flood waters from said creek have continued to overflow said 40-acre tract and to erode large portions thereof, washing off the top soil, and have also for a distance of approximately 100 feet from said railroad crossing southward eroded for a width of 5 feet or 6 feet the lands of the plaintiff in said 40-acre tract, completely destroying and washing away said lands of said width"; that the overflow of said waters in times of heavy rains has made it impossible for the plaintiff to cultivate said lands in any manner, since to disturb the soil thereof by cultivation would cause said flood waters to wash off the loosened top soil to a far greater extent than the erosion which has occurred without cultivation; that the rental value of the lands is of the reasonable amount of $1,600 per year, but has been depreciated by at least 50% for the last four years, and on this account he sued for depreciation in rental value of the 40-acre tract in the amount of $3,200; that permanent damage to his lands by erosion of his lands on the right bank of the channel is alleged to have been $100, and the erosion which has occurred at numerous points on the 40-acre tract has damaged the value of said tract in the amount of at least $2,000; and plaintiff therefore asks the recovery of $5,300.
He further alleged notice to the proper officials of the defendant concerning the maintenance of this continued nuisance and trespass upon the lands of the plaintiff, and that he requested its correction and abatement, naming the officials to whom these complaints had been made. He alleged that these complaints resulted in the defendant undertaking to correct the conditions of which he complained, and he detailed the corrective steps that were taken by the defendant, but alleges that these steps resulted only in a diversion of still greater volumes of water from the waters of said creek and increasing the overflow and damage resulting therefrom. He alleged that he notified the defendant of the increased damage to his lands resulting from this change in the channel, which was made in October, 1953; and that he demanded that the west side of this channel be increased in height to prevent overflow of flood waters, or, preferably, that the culvert under the railroad through which Swamp Creek is intended to pass be enlarged, but that no remedial action was taken by the defendant. He alleged that the maintenance of the inadequate culvert without proper provision for carrying the flood waters of said creek, either through said culvert by adequately enlarging the size thereof, or through a properly constructed channel which will prevent the flood waters of said creek from overflowing the lands of plaintiff, is a continuing trespass upon said 40-acre tract of land and is a private and continuing nuisance, the effect of which is repeated at frequent intervals in cases of heavy rains, on account of which he has suffered the injuries and damages detailed. By amendment required by the court upon the hearing of the defendant's demurrers, the plaintiff alleged the date of the construction of the highway bridge as having been from July 6, 1948, to a date in 1949.
The defendant demurred specially to the allegations in paragraph 7 of the petition, seeking the recovery of permanent damages to the 40-acre tract, and also demurred to the allegation in paragraph 3 of the petition relative to the construction of the highway bridge. In ruling upon grounds 1 and 2 of this demurrer to the allegations in paragraph 7, seeking the recovery of permanent damages, the court sustained these grounds and ordered that "the allegations and prayers of plaintiff's petition wherein he is seeking to recover permanent damages to his property is stricken." Ground 3 of demurrer relating to the highway bridge, after amendment by the plaintiff, was overruled. The plaintiff filed exceptions to the judgment sustaining grounds 1 and 2 of the special demurrers to paragraph 7, seeking the recovery of permanent damages.
The defendant, in answer to the petition neither admitted nor denied the allegations as to the ownership of the tract of land involved; admitted the purchase of the tract of land alongside its right-of-way from Robert R. Burleyson; admitted that, in the construction of said line of railway, a culvert was placed under the railroad track for the purpose of conveying thereunder the waters of Swamp Creek, and alleged that this culvert was constructed at least 100 years ago, and alleges that at the same time a ditch or canal was cut along the west side of the road bed, and that the waters of Swamp Creek for all of this period of time have flowed both under said road bed and along the west side of the same south and over the lands of the plaintiff. The answer admitted that the culvert was repaired by the defendant in October, 1936, by the placing of a corrugated iron liner plate. It alleged that after repair the waterway capacity of the culvert is 326 square feet, and that the culvert and the ditch or canal which had been in use for at least 100 years "have been sufficient to carry all of the water from the drainage area." It alleged that the 40-acre tract of land of the plaintiff is lower than the level of the bed of Swamp Creek, and the natural flow from said creek bed and particularly in high water would be south along the right-of-way of the road bed of the defendant onto the lands of the plaintiff; and that the water has thus flowed ever since the construction of said culvert and road bed, and said waters flowed over the 40-acre tract prior to the date the plaintiff purchased the same and for many years prior thereto. It denied that there has been an increase in the run-off of the water from the area drained by said creek; "but, due to the fact that many acres of the drainage area has been cleared, many roads paved and many drain ditches constructed the water gathers and accumulates faster than it did at the time of the construction of said railroad bed and culvert but alleges that at the time of the construction of said railroad the culvert together with the drain ditch on the west side of said road bed was amply sufficient to take care of the drainage area and that said railroad company in the construction of said culvert and road bed exercised ordinary care in the construction of the same in view of the climatic conditions and in view of the conditions of the drainage territory; but it alleges that due to the fact that the level of plaintiff's land was lower than the bed of said creek that his lands have at all times been overflowed by heavy rains." The answer of the defendant states that it did open a channel along the tract of land purchased from B. R. Burleyson of certain stated dimensions and that this channel is sufficient "to carry all of said drain water that accumulates on the western side of its right-of-way as the result of ordinary rainfall and that the construction of the new channel has lessened the amount of drain water which naturally flowed onto the lands of this particular plaintiff prior thereto." The defendant denied that the flood waters from Swamp Creek have continued to overflow the 40-acre tract, and alleged that, if the 40-acre tract is overflowed, "it is caused by the drainage water which falls to the west of the lands of this plaintiff." The allegations of paragraph 7 of the petition as to the amount of damages alleged to have been sustained by the plaintiff are denied. The answer admits having received numerous letters from the plaintiff and his attorney, as alleged in paragraph 8 of the petition, and admits that, in an effort to correct the situation, it did deepen the channel, and says that, by this action on its part, "the natural flow of the water onto the plaintiff's land was decreased and the burden of the flow on the defendant's land was increased."
The defendant on the day of the trial (April 9, 1954) amended its answer, by alleging that the first canal constructed in 1944 was constructed at the instance and request of the plaintiff and his predecessor in title; and that at their instance and request the defendant purchased this strip of land "for the purpose of digging a canal to contain the flow of surface waters which gathered in the drainage area served by Swamp Creek"; and that the plaintiff knew and approved of the use of this strip of land for this purpose; and that in the fall of 1953 the defendant constructed a second canal lying to the north of plaintiff's property connecting with the first channel, "and this construction was done at the instance and request of the plaintiff and was done with his approval and acquiescence"; that this construction was done with the knowledge and consent of the plaintiff and at considerable expense; and that he made no objection and took no steps to prevent the construction of either canal, and would therefore be estopped from claiming any injury or damage which may have resulted from the construction and use of the canal for drainage purposes.
The case proceeded to trial, which resulted in a verdict for the defendant. A motion for new trial was filed by the plaintiff and subsequently amended, and was thereafter overruled. The bill of exceptions herein complains of the judgment of the court, (1) upon the special demurrers of the defendant, and (2) of the order and judgment denying the motion for a new trial as amended.
1. The petition as a whole was properly construed by the trial court as an action seeking damages for maintaining a continuing abatable nuisance or trespass. It is not an action for the recovery of damages for a trespass upon the plaintiff's land such as could not be abated and such as rendered his land wholly and permanently worthless for the uses to which it was adapted, so that the owner could recover all resulting damages, past, present, and future in an action for permanent damages to the plaintiff's lands.
Let us now consider the assignments of error on the demurrers 1 and 2 to paragraph 7. These two grounds attack the following part of paragraph 7 of the petition as follows: "Plaintiff further shows that the damage which has occurred by erosion of his lands on the right bank of said channel has injured and damaged said lands in the amount of at least $100, and that the erosion which occurred at numerous points in said 40 acres tract has permanently injured and damaged the value of said tract in at least $2,000."
The two grounds of the defendant's demurrer asked that the allegations above be stricken for the following reasons: (a) That these allegations seek a recovery for permanent damages to the property for a permanent trespass, whereas the petition shows that the nuisance complained of is an abatable one, and therefore, the measure of damages alleged in this part of the paragraph demurred to is an incorrect measure of damage. (b) That the allegations of paragraph 7 of the petition seek to recover double damages, in that plaintiff seeks to recover $3,200 for depreciation in the rental value of said 40-acre tract, for the last four years, and also seeks to recover $2,100 as permanent damages to said 40-acre treat, whereas it appears from the petition that the nuisance complained of is an abatable and not a permanent one, so that the plaintiff can recover for the permanent decrease in value of his property and also for the loss of the use of said property. The defendant asked that — since the petition, properly construed, was one seeking a recovery for damages for maintaining an abatable nuisance or trespass, and was not one seeking damages by alleging the existence of a permanent and non-abatable trespass or nuisance, so as to recover in one action for all resulting damages, past, present or future to his lands from maintaining such nuisance or trespass — the allegations seeking the recovery of the $2,100 item, for permanent damages to the plaintiff's land, be stricken.
In Southern Ry. Co. v. Cook, 117 Ga. 286, 287 ( 43 S.E. 697), the Supreme Court said: "Where the effect of a trespass upon land is to render it wholly and permanently worthless for the uses to which it is mainly adapted, the owner must bring a single action to recover all the resulting damages, past, present and future. Allen v. Railroad Co., 107 Ga. 838, 843, and cases cited. Where, however, the nuisance is not of a permanent and continuing character, but one which can and should be abated, the party injured has no right to assume that it will be maintained indefinitely; and his remedy is, not to recover in one action for all past and future damages, but to bring from time to time separate suit for the recurring injuries sustained, instituting each within the period prescribed by the statute of limitations for taking steps to recover damages actually suffered up to the time the action is filed. Holmes v. Atlanta, 113 Ga. 962." Generally, the measure of damages for continuing an abatable nuisance is a diminution of the yearly rental value of the property damaged during the existence of the nuisance and within the statute of limitations, plus any actual damage sustained, and the measure of damages is not the diminution in the market value of the property. See Reid v. City of Atlanta, 73 Ga. 523; Smith v. City of Atlanta, 75 Ga. 110; Danielly v. Cheeves, 94 Ga. 263 ( 21 S.E. 524); Warren v. Georgia Power Co., 58 Ga. App. 9 ( 197 S.E. 338).
We might call attention to another principle of law with reference to damages to a tract of land where a nuisance is committed to a portion of the tract, such as contaminating a well. In such event the measure of damages is diminution of the market value of the tract by reason of such nuisance rendering the well permanently useless. Perhaps this may be obiter dictum. See Farley v. Gate City Gas Light Co., 105 Ga. 323 ( 31 S.E. 193). See also Mulligan v. City of Augusta, 115 Ga. 337 ( 41 S.E. 604); Ketron v. Sutton, 130 Ga. 539 ( 61 S.E. 113); and Central Ga. Power Co. v. Stubbs, 141 Ga. 172 ( 80 S.E. 636).
The Code section and cases cited by the plaintiff in support of his contentions that the judge erred in the judgment on demurrer are not applicable to the instant case, and in no way contravene the ruling of the court on the demurrers in the instant case. These are: Code § 105-1407; O'Connell v. East Tenn., Va. c. Ry. Co., 87 Ga. 246 ( 13 S.E. 489, 13 L.R.A. 394, 27 Am. St. R. 246); Mayor c. of Albany v. Sikes, 94 Ga. 30 ( 20 S.E. 257, 26 L.R.A. 653, 43 Am. St. R. 132); Farkas v. Towns, 103 Ga. 150 ( 29 S.E. 700); Goble v. L. N. R. Co., 187 Ga. 243 ( 200 S.E. 259); and Southern Ry. Co. v. Lester, 33 Ga. App. 136 ( 125 S.E. 722). The court did not err in its judgment on the demurrers.
2. The general grounds are not argued either in the brief or orally, and are considered abandoned.
3. The 13 special grounds, the first of which is numbered 4, are each and all incomplete within themselves, and for a determination of any of them the court would be compelled to go outside the grounds themselves and consider either the petition, the answer, or the evidence or other grounds of the amended motion. This court has held many, many times that, where a purported special ground is defective in this manner, such ground is not to be considered by this court. We are quite sure that, if distinguished counsel for the plaintiff would examine these grounds, he would readily agree that they are incomplete within themselves.
The court did not err in refusing a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.