Opinion
28418.
DECIDED NOVEMBER 27, 1940.
Damages; from Habersham superior court — Judge Candler. February 24, 1940.
Bynum Frankum, Lamar Murdaugh, C. E. Jackson, for plaintiff in error.
George Starr Peck, Irwin R. Kimzey, contra.
1. The petition set out a cause of action against the county, to recover for depreciation in value of the plaintiff's land, resulting from the construction through such land of a State highway over which the State Highway Department had asserted jurisdiction; and the allegations thereof as to the felling of valuable trees thereon, as to the damage to and pollution of a spring and stream on such land, and the destruction of the only dependable water supply on the land as a result of the construction of the road, were but illustrative of the depreciation in value of the plaintiff's land.
2. The cause of action accrued upon the completion and opening of the highway for traffic; and the filing by the plaintiff of such suit within twelve months from the accrual of the cause of action was a presentation of a claim as required by the Code, § 23-1602, which declares that "All claims against counties must be presented within twelve months after they accrue or become payable, or the same are barred."
DECIDED NOVEMBER 27, 1940.
Mrs. Eula G. Knight brought suit against Habersham County, alleging in her petition as follows: The defendant is Habersham County, but the State Highway Department, under the Code, § 95-1710, is responsible for all damages set out in the petition, upon being vouched in by the county to defend this suit. The plaintiff is the owner and in possession of certain real estate in Habersham County. Running diagonally through the southern part of this land, which is the plaintiff's home place, there has been established a road known as the Toccoa-Clarkesville highway, or route 115, which was formerly known as route 17, which road was taken into the highway system on December 19, 1931, and a map thereof filed with the Secretary of State on January 1, 1932. On May 15, 1935, the defendant, under Federal-Aid Project No. 1507, commenced work preliminary to the construction of the highway through the plaintiff's land for approximately 487 lineal feet, and as a part of this work the defendant, through its engineers, made four surveys across the plaintiff's land, cutting and felling many valuable trees, including hardwoods, which would take generations to replace, and destroyed many shrubs and decorative plants which the plaintiff had carefully preserved. This destruction was wanton and ruthless, and was unnecessary for the purpose of making the surveys. On July 1, 1936, the defendant, through such engineers and employees, commenced construction of such highway; and on November 24, 1937, the road was paved, completed, and opened to traffic by the defendant. This road, where it crosses through the plaintiff's property, runs on a fill which at its deepest point about the center of its course through the plaintiff's land is about twelve feet high. The natural drainage of the land carries rain water from the highway fill across and down the plaintiff's land in a northerly direction for the full length of her property. As a result of the construction of the road mud in large quantities with every rain has washed from the fill down into and across the plaintiff's land, and has polluted and destroyed her only satisfactory and dependable water supply, and increased amounts of water have been thrown into the stream running through her land, causing floods higher than they have ever been known to reach before, which has caused washing and erosion upon her land, and has caused a settling of mud thereon, and the stream has now become impure instead of the clear stream it formerly was. The increased floods have caused a dam on the stream on the plaintiff's property to wash out, to her injury and damage. The increased floods caused by the construction of the road have caused for the first time an overflow of muddy water into a large and historical Indian spring on the premises, and have ruined it as a spring, and have completely washed out by the roots an old forest white oak on the land, one of the last of its kind, and have left it overthrown and destroyed; that on account of these increased floods the culvert under the Clarkesville-Tallulah Falls highway, which carries off the flood waters, has become inadequate to properly carry off such waters, and with heavy rains the water backs up into the plaintiff's land, adding to her injury.
It was further alleged, that the defendant and the highway department were "negligent in so constructing and permitting said construction and creating said additional floods and in making said construction, and in not making adequate provision for the proper drainage thereof;" that the new highway which is on the back of the plaintiff's property adds nothing to its value, her property being below the level of the fill for practically its entire distance on the road, and her property on its north side fronting on the concrete road from Clarkesville to Tallulah Falls, which latter road the plaintiff uses for ingress and egress to and from the property, the back road being inaccessible for that purpose, and it being nearly twice as far to Clarkesville, the nearest town, by the back road as by the front road; that the plaintiff has on the land a large two story stone house in which she and her family live, and also has on the land a cottage which is rented out, and the pollution of their spring water has forced the use of a surface and wet-weather spring which is not at all dependable, drying up in the summer time and containing impurities ordinarily present in surface springs, which endanger and are a constant threat to the health and lives of the plaintiff and her family and tenants, and this has made such cottage less desirable for rental purposes; that the damages to the plaintiff's land above set forth accrued on the highway, and have continued and will continue with every rain until proper measures are taken to remedy the situation, and they constitute a damaging and taking of the plaintiff's land without paying adequate and just compensation to her; that she had landscaped and beautified this land, had the underbrush cleared out, had a selection of trees made and cleared to give the best landscaping effect and preserve the finest trees and give them a better opportunity to grow, all before the construction of the road above referred to, and the destruction of the remaining trees was consequently of the best trees on the place, none of which can be replaced within this generation, and some of which can never be replaced, being the last of fine old forest giants; that this suit is filed within one year after liability accrued as herein set forth; and that as a result of the construction of the highway the plaintiff's property has been depreciated in value and injured and damaged in the amount of $5000.
The defendant demurred to the petition, on the grounds: that no cause of action was set forth; that there was no allegation that the "alleged damage complained of occurred within twelve months of the filing of any claim therefor, or of the filing of any suit thereon, and for that reason any claim which the plaintiff might have had against the defendant is barred by the statute of limitations;" that there is no allegation which "would fix the measure of damage for the various allegations of damage;" and that the petition is duplicitous in that it seeks to recover damages for injury and destruction of personal property, and at the same time to recover for the taking and damaging of real property for public purposes. The defendant demurred specially to various paragraphs of the petition. The judge overruled the demurrer, and the defendant excepted.
The plaintiff brought suit against the county to recover for the depreciation in the value of her land as the result of the completed project. She did not sue to recover for any damages sustained as a result of an abatable, temporary, or continuing nuisance. The allegations as to the felling of valuable trees upon the plaintiff's land, and causing damage to the spring thereon, that as a result of the construction of the project the pond on the land has been polluted and has thus destroyed the only satisfactory and dependable water supply on the land, and that on account of the construction of the road increased amounts of water have been thrown into the stream running through her land, which have caused washing and erosion of her land and have caused the stream to become impure, are but allegations of fact illustrative of the character of the injuries and damage to the plaintiff's land. The trees, the stream through the plaintiff's land, and the spring thereon are parts of the land itself. These allegations are proper, and are not subject to demurrer on the ground that by such allegations the plaintiff is seeking to recover damages to personalty or to recover damages for a temporary or abatable nuisance. See Gwinnett County v. Allen, 56 Ga. App. 753 ( 194 S.E. 38); State Highway Board v. Shierling, 51 Ga. App. 935 ( 181 S.E. 885). As alleged, the plaintiff was damaged in the depreciated value of her land by the construction by the highway department of the State-aid road referred to in the petition. "Where private property is thus taken or damaged, such remedy as would lie against the city, or against the county with voucher of the State Highway Department . . or against the Highway Department . . would exist, not because of any nuisance or similar tort, but by virtue of the constitutional provision that `private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.' Code § 2-301." Perkerson v. Greenville, 51 Ga. App. 240 ( 180 S.E. 22).
"The State Highway Department shall not be liable under existing laws for damages accruing on such additional State-aid roads taken into the system under this law, until construction thereon has been begun under the direction of the State Highway Board and such additional State-aid roads opened to traffic by the said board." Code, § 95-1712. A cause of action for damage and injury to a landowner resulting from a permanent construction by the State Highway Department accrues upon the completion of the entire project and its opening to traffic by the board. Felton v. Macon County, 43 Ga. App. 651, 654 ( 159 S.E. 782). It appears from the petition that the construction of the road which the plaintiff claims caused the injury and damage sued for was completed on November 24, 1937. This is the date the cause of action accrued. The plaintiff having filed the petition to recover for such damage on November 22, 1938, it appears that suit was brought within twelve months of the accrual of the right of action. This is a compliance with the Code, § 23-1602, which declares that "All claims against counties must be presented within twelve months after they accrue or become payable, or the same are barred." "The bringing of a suit against the county within twelve months from date of the accrual of the cause of action is a sufficient presentation of the claim within the meaning of the Code, § 23-1602. Dement v. DeKalb County, 97 Ga. 733 ( 25 S.E. 382). The petition alleges that the suit is brought within twelve months from the time of the injury and damage." Taylor v. Richmond County, 57 Ga. App. 586 (3) ( 196 S.E. 303). The petition set out a cause of action, and the court did not err in overruling the general and special demurrers.
Judgment affirmed. Felton, J., concurs. Sutton, J., disqualified.