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POPE, Judge.
Action for damages. Seminole Superior Court. Before Judge Sheffield.
The issue presented on appeal is whether the trial court erred in failing to grant appellant's motions for directed verdict and judgment notwithstanding the verdict. Appellant's motions were predicated on its belief that appellee failed to prove damages. Appellee brought this action contending damage to his property from water diverted onto his land by appellant. Appellant argues that the case was tried on the theory of trespass pursuant to a pre-trial stipulation and that appellee was thus compelled to prove the diminution in value of the property from the fair market value before the trespass and the fair market value after the trespass. See Allgood Rd. &c. Church v. Smith, 173 Ga. App. 28 (2) (325 SE2d 392) (1984). Appellee argues that the case was one of continuing nuisance. In support of this, he points to a previous appeal in this case in which the Supreme Court reversed summary judgment in favor of appellant. Leverich v. Roddenbery Farms, 257 Ga. 731 (363 SE2d 543) (1988). In that case, the Supreme Court held that Leverich's action was one for continuing nuisance and thus governed by the four-year statute of limitation contained in OCGA 9-3-30. In a case of continuing nuisance, the plaintiff need not prove diminution in fair market value; rather "he may recover any special damages whether the injury is of a temporary or a permanent nature. [Cits.] Unlawful interference with the right of the owner to enjoy possession of his property may be an element of damages. [Cit.] The measure of damages for 'discomfort, loss of peace of mind, unhappiness and annoyance' of the plaintiff caused by the maintenance of a nuisance is for the enlightened conscience of the jury. [Cit.]" City of Columbus v. Myszka, 246 Ga. 571, 573 (272 SE2d 302) (1980). Held:
Ronnie J. Lane, for appellee.
Langstaff & Plowden, Robert B. Langstaff, for appellant.
Thursday May 21 11:33 EDT

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