Summary
In City of LaGrange v. Whatley, 146 Ga.App. 174, 246 S.E.2d 5 (1978), this court held that it was error for the trial court to deny summary judgment to the city on a claim of nuisance where the only evidence showed that the sewage backed up into the plaintiff's home on one and only one occasion.
Summary of this case from Atkinson v. City of AtlantaOpinion
55845.
SUBMITTED MAY 2, 1978.
DECIDED MAY 17, 1978. REHEARING DENIED JUNE 9, 1978.
Sewer; water damage. Troup Superior Court. Before Judge Jackson.
Lewis, Hunnicutt, Taylor Daniel, James R. Lewis, J. Wayne Hadden, for appellant.
H. J. Thomas, Jr., James E. Weldon, for appellee.
Appellant comes to this court by way of interlocutory appeal from the denial of its motion for a summary judgment. We reverse.
Appellee filed his complaint against appellant, alleging damages by virtue of a nuisance created and maintained by appellant. The alleged nuisance was a city sewer line that backed sewage up into appellee's home one time. Appellee testified that the one and only time sewage backed up into his home was February 7, 1977. There being no evidence here to establish that the City of LaGrange had created or was maintaining a nuisance, the trial court erred in denying appellant's motion for summary judgment. The case of City of East Point v. Terhune, 144 Ga. App. 865 ( 242 S.E.2d 728) (1978) controls the case at bar.
Judgment reversed. Deen, P. J., and Banke, J., concur.