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Action for damages to property. Jones Superior Court. Before Judge Carpenter. October 19, 1959.
The grantor of land for highway purposes who executed a deed including the provision that he released the defendant county from any claim of damage arising on account of construction of the road or fills and embankments, ditches or culverts or bridges, on account of back water, changing of courses of streams, or in any other manner, could not thereafter bring an action against the county based on the damaging of his adjoining land by reason of the fact that a fill erected by the State Highway Department eroded under winter rains and washed soil onto the land, lake, and irrigation system where he was maintaining a nursery business, since the subject matter of such damage was included in the release.
R. L. Wheeler filed an action against Jones County for damage to his property, alleging in substance the following: That the State Highway Department proposed to make certain highway improvements designated as Project No. F-002-4(4) and called upon the defendant county to acquire rights-of-way for this purpose; that pursuant thereto the plaintiff deeded certain land, being part of a larger parcel owned by the plaintiff, to the State Highway Department, a copy of which deed is attached to the petition by amendment; that the plaintiff's remaining land is used in the prosecution of a nursery business; that the State Highway Department in the construction of its project placed a large fill east of the plaintiff's lands; that the fill was allowed to remain uncovered for the unreasonable period of time of several months, although the defendant was warned of the danger of fill dirt washing on the plaintiff's nursery land and although the plaintiff himself offered to grass the fill over to prevent washing, which offer was refused; that in December, 1957, rains washed the fill down over the plaintiff's lands, killing his plants and filling his irrigation lake and drainage ditches, depositing foreign soil on his fertile area and reducing the market value of land by $6,000; that the plaintiff must now remove 820 cubic yards of dirt so deposited at a cost of $1,194.50, and that he has lost plants of the value of $4,160. The plaintiff's property was not damaged by necessary drainage in the construction and maintenance of the road, but as the result of the unnecessary washing of fill dirt on the plaintiff's land, and it was not done on account of construction of the road or fills, embankments, ditches, culverts or bridges, or on account of back water, changing of courses of streams, but as the result of the failure after construction to prevent washing of the fill dirt and by unnecessarily allowing the fill dirt upon the plaintiff's land.
A general demurrer to the petition was sustained and the petition dismissed, which judgment is here assigned as error.
The first issue raised is the construction of the latter part of this sentence the plaintiff contending that the phrase "On account of back water, changing of courses of streams, or in any other manner" modifies the immediately preceding phrase "on account of construction of said roads or fills and embankments, ditches or culverts or bridges" and the defendant contending that the two phrases are co-equal. "If the construction is doubtful, that which goes most strongly against the party executing the instrument, or undertaking the obligation, is generally to be preferred." Code 20-704 (5). "But it is equally well settled that no construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. In such an instance, the language used must be afforded its literal meaning and plain ordinary words given their usual significance." Wolverine Ins. Co. v. Jack Jordan, Inc., 213 Ga. 299, 302 (99 S. E. 2d 95). The language of the above quoted provision of the deed is not doubtful or ambiguous, and it plainly constitutes a release by the grantor to the defendant and the State Highway Department for damages arising (1) on account of construction of roads, fills, etc., (2) on account of water backing up or changing its course, and (3) "in any other manner." The latter provision, of course, must be construed ejusdem generis with the first two, but it is not here involved. The grantor released the defendant from any claim of damage arising on account of the construction of the road or fill in question. The trial court in sustaining the general demurrer based his decision on McCommons v. Greene County, 53 Ga. App. 171 (184 S. E. 897) in which a deed with identical provisions had been executed, and the ponding of water following the road construction resulted in consequential damages to the grantor's land. The court there held: "The provisions of the deed which were pleaded as a defense to the suit for damages against the defendant by the grantor of the deed, released the defendant from any liability to the plaintiff for the damages sued for." The provisions of the deed likewise released the county from the damages sued for here and prevent a recovery by the plaintiff, although the injury suffered would otherwise have been compensable as a damaging of private property for a public purpose without just and adequate compensation being first paid. Felton Farm Co. v. Macon County, 49 Ga. App. 239 (175 S. E. 29). The phrase "on account of" by definition means "by reason of; because of." Webster's New International Dictionary. If the damage was occasioned because of the construction of the road and fill, as it was, since the dirt piled for the fill eroded in December, 1957, prior to the completion of the project in August, 1958, the allegation that it was not done on account of the construction of the road or fill but as a result of the failure after construction to prevent the washing of fill dirt is a conclusion not sustainable under the facts pleaded.
The trial court did not err in dismissing the petition on general demurrer.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Assistant Attorneys-General, George L. Jackson, Donald E. Payton, contra.
Bloch, Hall, Groover & Hawkins, J. Pierce Anderson, for plaintiff in error.
Saturday May 23 00:26 EDT

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