Mrs. Pearl Cannon filed an action against the City of Macon on November 10, 1948, for damages to certain real property which she owned there. Her petition in three counts was held good as against the defendant's general demurrers in Cannon v. City of Macon, 81 Ga. App. 310 ( 58 S.E.2d 563), it being there ruled that a cause of action was set forth in each of the three counts against the city for maintaining a nuisance. The allegations of the petition are fully stated in the report of that case, but will be summarized here.
City Council of Augusta v. Williams, 206 Ga. 558 ( 57 S.E.2d 593). In Ingram v. City of Acworth, 90 Ga. App. 719, 720 ( 84 S.E.2d 99), the Court of Appeals said: "In Cannon v. City of Macon, 81 Ga. App. 310, 321 ( 58 S.E.2d 563), an action against a municipality for the construction and operation of a storm sewer in such manner as to damage the plaintiff's property, the following was cited with approval by the court as against the contention that the municipality was not liable for a governmental function: `"It was ... said in ... [ Smith v. Atlanta, 75 Ga. 110]: `This sewer was and is under the control of the city; if it be a nuisance and the city has not abated it, no one else could; not having abated it, the city may be said to have maintained it and kept it up, and it is thereby a continuing nuisance, for the maintenance of which the city is liable.'" [ Bass Canning Co. v. MacDougald Construction Co., 174 Ga. 222, 224]. It was in this case that the Supreme Court reversed the case of MacDougald Construction Co. v. Bass Canning Co., 42 Ga. App. 533 ( 156 S.E. 628), which cites City Council of Augusta v. Lamar, 37 Ga. App. 418 ( 140 S.E. 763). "Manifestly, power to construct a system of sew
Earnheart, supra. Moore's affidavit established that the City had not received any complaints about flooding in the vicinity of Goode's home. Goode has failed to point to any evidence demonstrating that the City had notice of the allegedly defective sewer repair or of the risk of rupture due to increased water run-off. Compare Cannon v. City of Macon, 81 Ga. App. 310 ( 58 SE2d 563) (1950). Accordingly, the trial court did not err in granting summary judgment to the City on Goode's nuisance claim.
OCGA § 41-1-3.Cannon v. City of Macon, 81 Ga. App. 310, 318-319(1) ( 58 S.E.2d 563) (1950). See Horney v. Panter, 204 Ga. App. 474, 476 (2) ( 420 S.E.2d 8) (1992).
Furthermore, we do not conclude the creek to be a nuisance under the facts of this case. See Cannon v. City of Macon, 81 Ga. App. 310, 319 ( 58 S.E.2d 563). This was a natural, free flowing branch which in the normal course of events and passage of time had cut its own channel. It neither began upon nor ended upon the owner's property nor was the flow subject to the control of the owner. It was not shown to be different from other naturally formed land formations.
The cases cited by the plaintiffs are in apposite, as in each of them there was evidence that the governmental unit in question had engaged in street construction or other development activities which altered the natural flow of the surface waters or interfered with the natural drainage of the soil. See City of Columbus v. Myszka, 246 Ga. 571 ( 272 S.E.2d 302) (1980); DeKalb County v. McFarland, 231 Ga. 649 ( 203 S.E.2d 495) (1974); Cannon v. City of Macon, 81 Ga. App. 310, 319 ( 58 S.E.2d 563) (1950). Since no such activities were shown in this case, we must affirm the grant of the county's motion for judgment notwithstanding the verdict.
Ga. 233 ( 29 S.E. 701); Holmes v. City of Atlanta, 113 Ga. 961 ( 39 S.E. 458); Massengale v. City of Atlanta, 113 Ga. 961 ( 39 S.E. 578); Mulligan v. City Council of Augusta, 115 Ga. 337 ( 41 S.E. 604); Langley v. City Council of Augusta, 118 Ga. 590 (8-10) ( 45 S.E. 486); Holbrook v. Town of Norcross, 121 Ga. 319 ( 48 S.E. 922); Mayor c. of Milledgeville v. Stembridge, 139 Ga. 692 ( 78 S.E. 35); Bass Canning Co. v. MacDougald Const. Co., 174 Ga. 222 ( 162 S.E. 687); City of Rome v. Brown, 184 Ga. 34 ( 190 S.E. 787); DeKalb County v. McFarland, 223 Ga. 196 ( 154 S.E.2d 203); Baranan v. Fulton County, 232 Ga. 852 ( 209 S.E.2d 188); Harris v. City of Rome, 10 Ga. App. 409 ( 73 S.E. 532); City of Atlanta v. Holcomb, 20 Ga. App. 601 ( 93 S.E. 259); Lewis v. City of Moultrie, 27 Ga. App. 757 ( 110 S.E. 625); City of Albany v.Jackson, 33 Ga. App. 30 ( 125 S.E. 478); City of Macon v. Macon Paper Co., 35 Ga. App. 120 ( 132 S.E. 136); City of Macon v. Douglas, 45 Ga. App. 798 ( 165 S.E. 922); Cannon v. City of Macon, 81 Ga. App. 310 ( 58 S.E.2d 563); City of Macon v. Cannon, 89 Ga. App. 484 ( 79 S.E.2d 816); City Council of Augusta v. Thorp, 103 Ga. App. 431 ( 119 S.E.2d 595); Gleaton v. City of Atlanta, 131 Ga. App. 399 ( 206 S.E.2d 46)), and on the theory of taking or damaging for public purposes without just and adequate compensation being first paid. Constitution Art. I. Sec. III, Par.
Bass Canning Co. v. MacDougald Construction Co., 174 Ga. 222 (1) ( 162 S.E. 687). See City of Macon v. Roy, 34 Ga. App. 603 ( 130 S.E. 700); Cannon v. City of Macon, 81 Ga. App. 310 ( 58 S.E.2d 563). Under the principles of law enunciated in the above-cited cases the instant petition clearly stated a cause of action against the defendant city council for damages which resulted from the creation and maintenance of the alleged nuisance by said defendant and its joint tortfeasors (the other defendants in this case). The mere fact that the allegations of the petition disclose that the actual construction of the streets and drainage system in question was done by the other defendants in this case, who were the developers of the subdivision, does not defeat the cause of action against the city council since it is alleged that the city council drew up the plans for the said street construction, contracted with the developers to construct these streets in accordance with these plans, and then approved the work after it was done as being in accordance with said plans.
Ground 3 of the general demurrer is on the proposition that the petition states no cause of action for the reason that the maintenance and operation of a sewerage-disposal plant is purely a governmental function for which there is no liability on the part of the city. In Cannon v. City of Macon, 81 Ga. App. 310, 321 ( 58 S.E.2d 563), an action against a municipality for the construction and operation of a storm sewer in such manner as to damage the plaintiff's property, the following was cited with approval by the court as against the contention that the municipality was not liable for a governmental function: "`It was . . . said in the Smith case [ Smith v. Atlanta, 75 Ga. 110]: "This sewer was and is under the control of the city; if it be a nuisance and the city has not abated it, no one else could; not having abated it, the city may be said to have maintained it and kept it up, and it is thereby a continuing nuisance, for the maintenance of which the city is liable." ' [ Bass Canning Co. v. MacDougald Construction Co., 174 Ga. 222, 224]. It was in this case that the Supreme Court reversed the case of MacDougald Construction Co. v. Bass Canning Co., 42 Ga. App. 533 ( 156 S.E. 628), which cites City Council of Augusta v. Lamar, 37 Ga. App. 418 ( 140 S.E. 763). `Manifestly, power to construct a
In some situations, of course, ownership of property includes the right to infringe the property of another. For example, when the owner of an upstream lot discharges surface water in an unnatural fashion upon the downstream lot, the downstream owner no longer owes a duty to accept such water, presumably even if refusing to accept it results in the flooding of the upstream lot. Cannon v. City of Macon, 81 Ga. App. 310, 317, 58 S.E.2d 563, 569 (1950). The right to cause flooding of the upstream lot, in such a case, derives from the downstream owner's right to the maintenance of drainage in its natural state.