" ...' ... [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 S.E.2d 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 S.E. 596)." Richmond County v. Williams, 109 Ga. App. 670, 674 ( 137 S.E.2d 343). No action was authorized on the theory of nuisance, since the evidence shows that the condition was abated promptly by the defendant county.
2 Nichols, supra at § 6.4431. Georgia recognizes the general rule that damages for depreciation of property resulting from physical damage to property are recoverable. Richmond County v. Williams, 109 Ga. App. 670, 137 S.E.2d 343 (1964) (damage from vibrations caused by pile driving machinery). Yet, mere elements of inconvenience or irritants to occupants or users of the land are not compensable.
Accord, Duffield v. DeKalb County, 242 Ga. 432 ( 249 S.E.2d 235) (1978). In addition, the Court of Appeals in Richmond County v. Williams, 109 Ga. App. 670 ( 137 S.E.2d 343) (1964), held that permanent physical damage to a structure caused by vibrations from a pile driver during construction of a highway overpass fifty feet from the injured house was compensable. In McFarland v. DeKalb County, 224 Ga. 618 ( 163 S.E.2d 827) (1968) and in Baranan v. Fulton County, 232 Ga. 852 ( 209 S.E.2d 188) (1974), we held that a continuing nuisance caused by a public body may also properly be enjoined.
We, therefore, hold that the admission of evidence of consequential damages to the contiguous 5-acre tract of land owned by Mr. Bray individually was erroneous. If the 5-acre tract has suffered damages by virtue of the taking which occurred on the joint-ownership tract, then such damages must be asserted in a separate action against the condemnor. See Richmond County v. Williams, 109 Ga. App. 670 ( 137 S.E.2d 343) (1964). The condemnor's second complaint here is that the trial court erroneously admitted into evidence photographs depicting transmission line structures and wires located on easements of the Georgia Power Company in other areas of the state.
The generally accepted rule seems to be that a condemnor cannot immunize itself from its constitutional obligation to pay compensation for the taking or damaging of property done pursuant to the power of eminent domain. Richmond County v. Williams, 109 Ga. App. 670 ( 137 S.E.2d 343); City of Atlanta v. Kenny, 83 Ga. App. 823 ( 64 S.E.2d 912); 29A CJS 854, § 195; 26 AmJur2d 846-847, § 171; and see annotation at 2 ALR2d 711, § 8. Several decisions from the highest appellate courts of foreign jurisdictions have followed this rule in cases similar to this one. In Sherlock v. Mobile County, 241 Ala. 247, 249 ( 2 So.2d 405) it was held: "The county cannot avoid liability to property owners for property taken or for injury done, within the meaning of § 23 and § 235 of the Constitution, by authorizing the work to be done by a third person acting by the county's authority, whether such third person be an agent or an independent contractor."
The plaintiff in the instant case alleges that the county's action in constructing a spillway and digging a ditch along the road resulted in the flooding of his lands each year since their construction with specific damages to his property within the twelve months preceding his giving notice to the county. The petition also alleges that the maintenance of this continuing nuisance amounts to a taking of his property by the county without paying him compensation. For further support of our ruling see Dougherty County v. Hornsby, 213 Ga. 114 ( 97 S.E.2d 300); Barfield v. Macon County, 109 Ga. 386 ( 34 S.E. 596); Smith v. Floyd County, 85 Ga. 420 ( 11 S.E. 850); Richmond County v. Williams, 109 Ga. App. 670 ( 137 S.E.2d 343); Sheehan v. Richmond County, 100 Ga. App. 496 ( 111 S.E.2d 924); Clarke County School District v. Madden, 99 Ga. App. 670 ( 110 S.E.2d 47); and Gwinnett County v. Allen, 56 Ga. App. 753 ( 194 S.E. 38). If our ruling in this case is contrary to what was held in Floyd County v. Fincher, 169 Ga. 460 ( 150 S.E. 577), the rule made in that case was not by a full bench, and we are bound by the full-bench decision in Nalley v. Carroll County, 135 Ga. 835, supra.
Consequential damage to property is also a "taking" entitling the owner to compensation. See id.; see also Richmond County v. Williams, 109 Ga. App. 670 (a), (b) ( 137 S.E.2d 343) (1964). The date of taking, which is the effective date for determining the amount of just and adequate compensation, must be established because losses occurring before this date are not compensable.
City of Atlanta v. Kenny, 83 Ga. App. 823, 828 (1) ( 64 S.E.2d 912) (1951). See also Pair Dev. Co. v. City of Atlanta, 144 Ga. App. 239 ( 240 S.E.2d 897) (1977) (damage to private property occurred during and as the result of activity undertaken in connection with the repair of a sewer line); Richmond County v. Williams, 109 Ga. App. 670 ( 137 S.E.2d 343) (1964) (damage to private property occurred during and as the result of the use of pile driving machinery in a road construction project). In the present case, however, the damage to appellant's property did not occur during and as the result of any ongoing activity undertaken in connection with the construction of that public works project of which the water main was an element.
This is a correct statement of the law. See Downside Risk, Inc. v. MARTA, supra at (3), and cases cited; see also Richmond County v. Williams, 109 Ga. App. 670 ( 137 S.E.2d 343) (1964). Nevertheless, plaintiff argues that this charge, when read in conjunction with the following charge, was confusing and misleading to the jury: "[A]ctual physical intrusion into property by a public authority is not required in order for just compensation to be due from a public authority that damages private property. . . . Rather, if a property owner proves substantial interference with his right to enjoy the use of his property, he may recover."
See Southwire Co., supra. If Mrs. Simon's remaining property has suffered damage by virtue of the taking which occurred on the adjoining tract, "then such damages must be asserted in a separate action against the condemnor. See Richmond County v. Williams, 109 Ga. App. 670 ( 137 S.E.2d 343) (1964)." Bray, supra at 561.