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Petition for injunction. Before Judge Humphrey. Washington Superior Court. November 21, 1952.
CANDLER, Justice.
1. Under the Code, an upper riparian owner cannot adulterate and pollute the water of a non-navigable stream so as to render it unfit for use by a lower owner, or clog the bed of the stream so as to cause its water to overflow, and thereby impair the value of the lower owner's property, without being liable to him in damages for such unlawful acts.
2. Where the owner of property, upon which his grantor created a nuisance, continues its maintenance, after request to abate it, he is responsible for the damages resulting thereby.
(a) A purchaser of property being injured by a nuisance may recover those damages which result from its continuation, after notice to abate, though he had knowledge of such nuisance at the time of his purchase.
3. Any unlawful invasion of a property right is a trespass, and equity will enjoin a continuing trespass.
The plaintiff on August 2, 1952, brought an action in Washington County for damages and injunctive relief against Thiele Kaolin Company, an upper riparian owner. As amended, the petition in substance alleges: During 1945, the defendant's immediate predecessor in title constructed a dam across an unnamed, non-navigable stream, a tributary of Limestone Creek, for the purpose of diverting and using the water in processing kaolin at its plant near the stream. After such use, the water is returned to its usual channel, but below the dam; and, from such use, it is adulterated and polluted with dirt, chalk, kaolin, chemicals, and other debris. The defendant purchased the aforementioned kaolin plant and its appurtenant property and property rights on or about January 1, 1947; and the defendant has, since then, continuously maintained the dam and diverted, used, adulterated, and polluted the waters of the stream as did its predecessor in title. The stream, across which the defendant's dam was constructed, flows through a tract of land, downstream from the dam, which the plaintiff purchased on February 8, 1950, it being a tract or lot of land in the City of Sandersville, Georgia, containing 7.89 acres. By the defendant's wrongful and continuous act in adulterating and polluting the waters of the stream, the plaintiff's right to use and enjoy the same for several enumerated profitable purposes has been completely destroyed. Refuse from the defendant's plant is gradually filling up the channel of the stream, thereby causing its waters to overflow and leave large deposits of impure substances upon the plaintiff's land, thus destroying the fertility of his soil and rendering his tract as a whole unproductive and unusable for those purposes to which it is peculiarly suitable. The plaintiff had no knowledge of the existence of the nuisance at the time of his purchase and has, since then, requested the defendant to abate it, but such request has not been granted. Prior to such wrongful acts of the defendant, the plaintiff's land was reasonably worth and had a market value of $10,000; but, as a result of the defendant's continued maintenance of such nuisance, his land has a value of only $300, and its present market value is being daily lessened by the defendant's wilful continuation of the nuisance. The damages sued for actual and punitive, are those which have accrued because of a wilful continuation of the nuisance since the plaintiff's purchase. To an order sustaining general and special demurrers of the defendant, and dismissing the petition, the plaintiff excepted.
(After stating the foregoing facts.)
1. While the petition was, before amendment, subject to some of the grounds of special demurrer, we do not think it was subject to general demurrer. Riparian proprietors have a common property right in the waters of the stream, and the necessities of the business of one cannot be the standard of the rights of another, but each is entitled to the reasonable use of the water with respect to the nights of others, and any unlawful interference by one with the enjoyment by another of such common property right gives a cause of action. Code, 105-1401; Hodges v. Pine Product Co., 135 Ga. 134 (68 S. E. 1107). "Running water, while on land, belongs to the owner of the land, but he has no right to divert it from the usual channel, nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner." Code, 85-1301. And 105-1407 of the Code is as follows: "The owner of land through which nonnavigable watercourses may flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other riparian proprietors; and the diverting of the stream, wholly or in part, from the same, or the obstructing thereof so as to impede its course or cause it to overflow or injure his land, or any right appurtenant thereto, or the pollution thereof so as to lessen its value to him, shall be a trespass upon his property." In 2 Farnham on Water and Water Rights, 1565, 462, it is said: "The right to have a natural water course continue its physical existence upon one's property is as much property as is the right to have the hills or forests remain in place." According to the allegations of the petition as amended, the defendant, in the operation of its kaolin plant, was continuously adulterating and polluting the waters of the stream passing through the land of the plaintiff and continuously injuring the plaintiff's land by filling up the channel of the stream; and for these unlawful acts, unabated upon request, the plaintiff was entitled to recover whatever damages he sustained by reason thereof. Satterfield v. Rowan, 83 Ga. 187 (9 S. E. 677); Horton v. Fulton, 130 Ga. 466 (60 S. E. 1059); Price v. High Shoals Mfg. Co., 132 Ga. 246 (64 S. E. 87, 22 L.R.A. (N.S.) 684); Cairo Pickle Co. v. Muggridge, 206 Ga. 80 (55 S. E. 2d, 562), and citations. There was, according to the amended petition, an illegal invasion of the property rights of the plaintiff, and he was at least entitled to recover nominal damages. Price v. High ShoaLs Mfg. Co., supra; Williams v. Harris, 207 Ga. 576 (63 S. E. 2d, 386). And it is well settled that a petition which states a cause of action for any substantial relief should not be dismissed on general demurrer. Greene v. Kelly, 193 Ga. 675 (19 S. E. 2d, 718); Reardon v. Bland, 206 Ga 633 (58 S. E. 2d, 377), and the cases there cited.
2. As we construe the allegations of the amended petition, this litigation was based on the defendant's continuance of a nuisance created by his grantor in 1945, and not an action for damages arising from the creation of a nuisance. One question here argued is whether or not the grantee or alienee of the property causing a nuisance is liable for damages caused by its continued maintenance. As to this, the Code, 72-105, provides that: "The alienee of a person owning the property injured may sue for a continuance of the nuisance; so the alienee of the property causing the nuisance is responsible for a continuance of the same. In the latter case there must be a request to abate, before action brought." In this case, as shown by our statement of the facts, the plaintiff, before this suit was brought, requested the defendant to abate the nuisance, and the defendant declined to grant the request so made. In Southern Railway Co. v. Cook, 106 Ga. 450, 453 (32 S. E. 585), it was said: "If, however, a person come into possession of property upon which there is an existing nuisance, before an action can be maintained against such person for continuing the nuisance it is essential that there should be a request to abate it, before any liability for maintaining the same would arise." Citing Bonner v. Welborn, 7 Ga. 296; W. & A. R. Co. v. Cox, 93 Ga. 561 (20 S. E. 68); Middlebrooks v. Mayne, 96 Ga. 449, 452 (23 S. E. 398). So, in Blackstock v. Southern Ry. Co., 120 Ga. 414, 416 (47 S. E. 902), it was held: "If before an action can be brought against the alienee of the property causing the nuisance there must be a request to abate the nuisance, then it is evident that no cause of action arises against such alienee until such request is made. The cause of action against him is continuing a nuisance after having been notified of its existence and requested to abate it." This court in Roberts v. Georgia Ry. &c. Co., 151 Ga. 241, 249 (106 S. E. 258, 14 A.L.R. 1089), denied a request to review and overrule Southern Ry. Co. v. Cook and Blackstock v. Southern Ry. Co., supra. "If the action be against the alienee of the person creating the nuisance, it can only be maintained against such person after giving notice to abate the nuisance, and is for damages resulting from its maintenance, and not for its creation." Williams v. Southern Ry. Co., 140 Ga. 713, 714 (3d) (79 S. E. 850). And there is no merit in the contention that the plaintiff's knowledge of the nuisance, at the time of his purchase of the property being injured thereby, would be a bar to his right to recover damages resulting from a continuation of the nuisance by the defendant, after being requested to abate it. Central Railroad v. English, 73 Ga. 366; Savannah & Western R. Co. v. Woodruff, 86 Ga. 94 (13 S. E. 156). Nor is there any merit in the contention that the defendant had acquired a prescriptive right to maintain the nuisance complained of. See Anneberg v. Kurtz, 197 Ga. 188 (28 S. E. 2d, 769, 152 A.L.R. 338), and Watkins v. Pepperton Cotton Mills, 162 Ga. 371 (134 S. E. 69), and the cases there cited. With respect to damages accruing from a continuation of the nuisance, after request to abate it, the allegations of the amended petition were sufficient to withstand the demurrer.
3. Under Code 105-1407 and the ruling in McNabb v. Houser, 171 Ga. 744 (1) (156 S. E. 595, 74 A.L.R. 1122), the allegations of the amended petition were sufficient, not only to shoW a trespass upon the plaintiff's land, but a continuing one; and, that being true, the case comes within the rule that equity will by injunction repress a continuing trespass. Gainesville Midland R. Co. v. Tyner, 204 Ga. 535 (50 S. E. 2d, 108); Key v. Stringer, 204 Ga. 869 (52 S. E. 2d, 305); Smith v. Wilkinson, 208 Ga. 489 (67 S. E. 2d, 698). See, in this connection, Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 118 Ga. 255 (2) (45 S. E. 267).
For the reasons stated in the preceding divisions, the petition as amended was sufficient to withstand the attacks made upon it by general demurrer; and, by amendment, the petition was relieved of the defects pointed out by the several grounds of special demurrer. Accordingly, the demurrers should not have been sustained, and it was reversible error to do so.
E. W. Jordan and D. E. McMaster, contra.
J. D. Godfrey and Casey Thigpen, for plaintiff in error.
Saturday May 23 04:23 EDT

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