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Lawskills.com Georgia Caselaw
VICKERS v. CITY OF FITZGERALD.
29994.
Injunction. Ben Hill Superior Court. Before Judge Horne. May 26, 1960.
QUILLIAN, Justice.
1. A petition of a lower riparian owner showing an adulteration by an upper riparian owner, of water flowing through their properties with resultant damage to such lower owner, in violation of Code 85-1301 and 105-1407, is not demurrable as stating no cause of action.
2. Where the damage of such lower owner is shown to leave been the result of the maintenance of a nuisance of a continuing character and to have occurred within the four-year period next preceding the filing of the suit for damages, such owner's cause of action is not barred by the statute of limitations. Code 3-1001.
3. To acquire a prescriptive easement over real property, there must be continuity of possession of the right asserted for the entire period fixed by the statute. Code 85-406.
4. The petition is not demurrable on the ground of laches on the part of the petitioner, as nothing in the petition authorizes the inference that there was any delay on the petitioner's part which rendered the ascertainment of the truth more difficult, or in any way hindered the defendant city in making its defense.
5. The petition shows a compliance with provisions of Code Ann. 69-308 with reference to notice to the municipal corporation.
Elie C. Vickers has brought the present writ of error to have this court review assignments of error on the trial court's action in sustaining general demurrers to, and the consequent dismissal of, his petition, in which he seeks to recover enumerated general and punitive damages of $145,000 from the City of Fitzgerald, a municipal corporation, and to enjoin an alleged nuisance. The material allegations of his petition as amended are substantially these: The petitioner is the owner of described lands consisting of some 570 acres, in Ben Hill and Irwin Counties, on which is located a large private lake covering approximately 450 acres; in addition to owning and maintaining his residence on such land, the petitioner has, at great expense and large investment, constructed a bowling alley, dance hall, boat docks, three swimming pools, dressing rooms, concession stands, and other improvements on the land for the purpose of developing and improving the lake and surrounding lands into a desirable and attractive resort for picnicking, recreation, and commercial fishing, from all of which he was receiving substantial patronage and profit prior to the time when the defendant began dumping large quantities of sewage and other obnoxious matter into streams feeding his lake, as herein after set forth. The petitioner has owned the described lands, lake, and described improvements continuously during and within the four-year period next preceding the filing of this suit; for more than twenty years next preceding the filing of this suit, the defendant city, acting by and through its Water, Light, and Bond Commission, has disposed of the discharge from its sewerage system and septic tanks by emptying such discharge into various ditches and small creeks which flow and empty into a small stream commonly known as "Willacoochee Creek," and this is done at points within the limits of the defendant city approximately three miles upstream from the point at which Willacoochee Creek flows into the petitioner's lake. During and within the fifteen years next preceding the filing of this suit, the amount of discharge from the defendant city's sewerage system and septic tanks became increasingly larger in volume; and, during and within the four years next preceding the filing of this suit, the defendant city, acting by and through the aforementioned commission, has regularly and continuously dumped and emptied vast quantities of raw, untreated sewage, and other enumerated obnoxious matter from its sewerage system and septic tanks, into the described drainage ditches and small streams which flow into Willacoochee Creek, all of which are non-navigable and wholly incapable of absorbing the vast quantities of raw, untreated sewage and other obnoxious matter dumped therein by the city before those waters flow into the petioner's lake. This action by the defendant city is causing the water in the lake to be contaminated and saturated with the described obnoxious matter, which has killed thousands of pounds of fish, rendering the lake unfit and undesirable as a commercial fishing site during this period of time, reduced its reasonable annual value as a commercial fishing site by $5,000; this action and conduct of the defendant city has caused and is continuing to cause such described conditions in and around the petitioner's lake as to render his property unfit and undesirable as a recreation site, reducing its reasonable annual value as a recreation site by $5,000; and this action and conduct of the defendant city has caused and is continuing to cause such described conditions as to prevent the petitioner and his family from using and enjoying their residence, resulting in intense mental and physical pain, discomfort, embarrassment, and humiliation, for which the petitioner is entitled to recover at least $5,000 per year. During and within the four-year period next preceding the filing of this suit, the petitioner has made frequent and repeated appeals to the defendant city to abate this unbearable and injurious nuisance, all of which have been ignored, and denied to his great injury and damage, for which he is entitled to $10,000 as punitive dam-
ages; and this conduct and action of the defendant city has permanently damaged the petitioner's described property in the amount of $75,000, all of which damages amount to $145,000. It is further alleged that this action and conduct of the defendant city constitutes a continuous nuisance dangerous to life, health, and property of the petitioner, who, as a lower riparian landowner and member of the public, is specially and injuriously affected thereby. It is also alleged that the petitioner had furnished the defendant city and its commission with written notice of his claims for equitable relief and damages, as set forth in the petition, more than thirty days prior to the filing of the present action, "all as required by and in accordance with the provisions of Code 69-308," by furnishing each with an exact copy of the allegations contained in the petition attached to the written notice which is attached to the petition as an exhibit, which being addressed to the defendant and its commission, is dated May 11, 1959, receipt of which is acknowledged thereon as of the same date by the clerk of the defendant and its commission, and is in these terms: "In accordance with and pursuant to the provisions of Georgia Code 69-308, we attached hereto and present herewith for your consideration a copy of a petition setting forth a claim of Mr. Elie C. Vickers against the City of Fitzgerald and the Water, Light and Bond Commission of the City of Fitzgerald for equitable relief and damages in the amount of $145,000. As you will notice, this petition has been prepared for filing in the Superior Court of Ben Hill County, Georgia. We are attaching a copy of the petition to this notice in order to advise you of the time, place, and extent of the injuries complained of by Mr. Vickers and the negligence or other acts upon which the claim is founded. If the petition does not contain sufficient information to enable you to definitely locate the property injured, the amount of damages claimed, or to otherwise determine whether or not the claim should be settled or adjusted without litigation, we will be glad to furnish any other information required. If the claim for damages set forth in the attached petition is not settled and the nuisance therein complained of is not abated within thirty (30) days after the presentation thereof you are hereby notified that a petition will be filed in the Superior Court of Ben Hill County that will correspond in all material respects to the petition hereto attached . . ." The concluding averment in the petition which was filed in court and is presently before this court is to the effect that the petitioner did not know and could not allege what action, if any, the defendant city has taken pursuant to or as a result of the presentation of the written claim, but that the defendant city has not taken any action thereon that has resulted in the settlement of any of the petitioner's claims.
The defendant's general demurrer is predicated on the grounds that the petition set forth no right to recover damages or cause for equitable relief because the plaintiff's claim for damages is barred by the statute of limitations and his right to equitable relief is precluded by laches; that the petition further revealed that the defendant city had, before the suit was filed, acquired the prescriptive right to do what the petitioner complained had been done. The defendant particularly stresses the contention that the petition set forth no cause of action because the notice required by Code 69-308, within six months of the happening of the event upon which the claim is predicated, had not been given.
1. "A lower riparian owner is entitled to have water flow upon his land in its natural state free from adulteration. Code 85-1301 ,105-1407; Satterfield v. Rowan, 83 Ga. 187 (2) (9 S. E. 677); City of Elberton v. Hobbs, 121 Ga. 749 (3) (49 S. E. 779); Hodges v. Pine Product Co., 135 Ga. 134 (68 S. E. 1107); Robertson v. Arnold, 182 Ga. 664 (186 S. E. 806, 106 A. L. R. 681); Cairo Pickle Co. v. Muggridge, 206 Ga. 80 (55 S. E. 2d 562)." Kingsley Mill Corp. v. Edmonds, 208 Ga. 374 (2) (67 S. E. 2d 111). Under an application of the foregoing principles of law to the facts alleged in the petition, a cause of action was set forth for the recovery of damages and for the granting of the injunctive relief prayed.
2. A ground of the general demurrer especially insisted on is that the allegations of the petition disclose that the defendant city had emptied its sewage into the creek which feeds the petitioner's lake for a period of more than twenty years and hence the petitioner's right to sue for damages arising from this practice is barred by the statute of limitations. The petition does contain the allegations to which reference is made by the general demurrer, but it is also therein related that the volume of the sewage emptied into the stream has been increased over a period of fifteen years; and that during the four-year period next preceding the filing of the suit, the volume of the sewage had been so increased as to contaminate and damage the lake and surrounding property. It is elementary that no cause for damages accrues until the plaintiff has been damaged. Athens Manufacturing Co. v. Rucker, 80 Ga. 291 (4 S. E. 885). The suit is for damages to the petitioner's property caused by the city's maintenance of a continuing private nuisance for the four-year period immediately preceding the date of the filing of the suit. "Where a nuisance is not of a permanent and continuing character, but such as a city may at will abate, a citizen has no right to assume that the same will be maintained indefinitely. His remedy therefore is, not to recover in one action all past and future damages, but to bring from time to time separate suits for 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. City Council of Augusta v. Lombard, 101 Ga. 724 [28 S. E. 994]." Holmes v. City of Atlanta, 113 Ga. 961 (39 S. E. 458); Farley v. Gate City &c. Co., 105 Ga. 323 (31 S. E. 193); Massengale v. City of Atlanta, 113 Ga. 966 (39 S. E. 578). "Although a suit for the creation of a nuisance may be barred by the statute of limitations, yet if the nuisance be of a continuing character which can and should be abated, suit may be brought for damages arising from its maintenance. In an action for the maintenance of a continuing nuisance, damages may be recovered resulting from such maintenance which accrued at any time within the period prescribed in the statute of limitations before the institution of the suit. In such an action the fact that the petitioner may allege damages, some of which are barred by the statute of limitations and others not, will not render the petition demurrable as to those which are not barred." Gabbett
v. City of Atlanta, 137 Ga. 180 (73 S. E. 372); Monroe v. McCranie, 117 Ga. 890 (46 S. E. 246).
3. As we have said, the practice of discharging raw, untreated sewage and other obnoxious matter into the tributary streams in quantities sufficient to pollute and contaminate the lake allegedly was begun within the four-year period next preceding the filing of the suit, not twenty years before the filing of the suit. Code 85-402 enumerates the prerequisites for the acquisition of prescriptive title to real property. Chief among these is continuity of possession for a period of twenty years. This court has held this requirement of continuity applicable to any practice relied upon to vest in the prescriber the right to subject the lands of another to a particular burden or use. City Council of Augusta v. Lombard, 101 Ga. 724, supra; Goble v. Louisville & Nashville R. Co., 187 Ga. 243 (200 S. E. 259); Ellington v. Bennett, 59 Ga. 286 (1877).
In passing upon this ground of the demurrer we have considered the plaintiff's contention that the petition charged the defendant city with maintaining a public nuisance and that the right to continue a public nuisance cannot be acquired by prescription. Savannah, Florida & Western Ry. Co. v. Parish, 117 Ga. 893 (45 S. E. 280); City of Blue Ridge v. Kiker, 189 Ga. 717 (7 S. E. 2d 237); 39 Am. Jur. 288, 10; 40 A. L. R. 2d 1177, 1204. The petition fell short of describing a public nuisance, in that there is no allegation that from the points where the sewage was deposited by the defendant city the streams flowed through the lands owned by anyone other than the plaintiff, or that anyone other than he was damaged thereby. Code 72-102; Miller v. Coleman, 213 Ga. 125 (3), 128 (97 S. E. 2d 313). Ground four of the general demurrer is without merit.
4. There is no merit in the contention that the petition discloses that the petitioner's cause of action is barred by laches. The petitioner did not institute the action until the end of the four-year period during which the damages sought accrued. However, nothing in the petition authorizes the inference that this delay, within the statute of limitations (Code 3-1001), rendered the ascertainment of the truth referent to the facts upon which the suit was based more difficult, or in any way hindered the defendant city in making its defense. Code 37-119.
5. The contention is urged by the defendant city that the petition did not allege that the notice required by Code Ann. 69-308 was given within six months of the happening of the event upon which the petitioner based his claim for damages. The notice alleged to have been given within six months from the expiration of the four-year period during which the nuisance continuously caused damage to the petitioner's property was given within the time prescribed by the statute. City of Rome v. Rigdon, 192 Ga. 742 (16 S. E. 2d 902), and the numerous cases there cited; Nimmons v. City of LaGrange, 94 Ga. App. 511 (95 S. E. 2d 314).
Judgment reversed. All the Justices concur.
McDonald & McDonald, contra.
Reinhardt & Ireland, for plaintiff in error.
ARGUED SEPTEMBER 12, 1960 -- DECIDED NOVEMBER 15, 1960.
Saturday May 23 00:25 EDT


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