Cannon v. City of Macon

Full title: CANNON v. CITY OF MACON

Court: Court of Appeals of Georgia

Date published: Mar 16, 1950

58 S.E.2d 563 (Ga. Ct. App. 1950)

58 S.E.2d 563

Opinion

32696.

DECIDED MARCH 16, 1950. ADHERED TO ON REHEARING APRIL 1, 1950.

Action for damages; from Bibb Superior Court — Judge Atkinson. July 14, 1949. (Application to Supreme Court for certiorari.)

Martin, Snow Grant, for plaintiff.

E. S. Sell Jr., Benning M. Grice, for defendant.

A cause of action was stated in each of the three counts of the petition, and the court erred in sustaining the demurrers thereto.

DECIDED MARCH 16, 1950. ADHERED TO ON REHEARING APRIL 1, 1950.

Mrs. Pearl Cannon brought an action for damages against the City of Macon. By amendment she struck her original petition in its entirety and substituted a petition in three counts. The material allegations of count 1 were substantially as follows: The plaintiff is the owner of a certain house and lot located in the City of Macon. There is located directly beneath her house a certain storm sewer running from the north side of her property to the south side of the property along a line about 15 feet west of the rear of the house. The sewer is approximately 3 feet wide and 4 feet deep with the top level with the ground. The sewer is constructed of concrete walls and a concrete floor and is covered over with an oval shaped rock and concrete top which extends above the surface of the ground. The sewer has its origin on the west side of Emery Highway in the City of Macon at a point where Emery Highway and Center Street intersect. From that point the sewer extends in a generally westerly direction approximately parallel to Center Street, crossing Lee, Garden, and Hydrolia Streets and then turning in a southerly direction so as to run parallel to Clinton Street as it passes underneath the plaintiff's house. From the point of its origin to a point where it crosses Lee Street, the sewer consists of an open ditch, but at that point where it crosses Lee Street, and for a distance about 50 feet west of Lee Street, it consists of a concrete-rock construction beneath the surface of the ground. Thereafter, as it proceeds in the direction of the plaintiff's house, it is alternately covered over and built up as an ordinary storm sewer on the one hand and an open ditch on the other hand; but at the points where it crosses Garden and Hydrolia Streets, it consists of a stormsewer construction similar to that at the point where it crosses Lee Street. The ditch was originally a natural drainage ditch through which flowed the ordinary drainage of rainfall from the areas immediately adjacent to it, and the ditch was of sufficient size and capacity to carry all of such natural rainwater from those areas without overflowing or doing any damage to the surrounding property. Over a period of years the defendant has greatly increased the amount of water flowing in this sewer by reason of the fact that the defendant has paved many of the streets in the area within one to two blocks on each side of the ditch and has constructed storm sewers leading from those paved streets and emptying into the said storm sewer which runs beneath the plaintiff's house. Specifically, the plaintiffs averred, that during the year 1944, the defendant constructed Emery Highway by making a four-lane paved street of what had formerly been a small dirt street known as Broad Street. In the construction of this highway, the defendant located various storm sewers for the purpose of collecting the rainwater which fell upon this paved highway and channeled all of these storm sewers, within a block north and south of the intersection of Emery Highway and Center Street into the storm sewer which has its beginning at this intersection, and which runs underneath the plaintiff's house. As Emery Highway leads to this intersection it is down hill for a distance of from 100 to 200 yards from both directions, and the natural and inevitable result of the paving of this wide strip of highway is to cause all rainwater which falls on the entire area to gravitate toward and be emptied into the storm sewer which begins at that intersection. The amount of water thus emptying into said sewer has been more than tripled by the widening and paving of Emery Highway because a great amount of water was absorbed into the street itself before it was paved and other large amounts of water found their ways by natural flow and seepage to other points than the said sewer. In addition, sometime during the year 1946, the defendant widened and paved Center Street for a distance of three blocks from its intersection with Emery Highway to its intersection with Hydrolia and Clinton Streets and installed storm sewers leading from Center Street to the said storm sewer which runs underneath the plaintiff's house. One storm sewer was constructed near the intersection with Emery Highway leading from Center Street to the commencement of the sewer which runs underneath the plaintiff's house. Another storm sewer leads from Center Street down Lee Street where it empties into said sewer. The effect of widening and paving Center Street has been to greatly increase the amount of water flowing into said sewer because all of the water which falls on Center Street for its entire length between Emery Highway and Hydrolia Street and Clinton Street is collected and channeled into said sewer, whereas prior to its paving, a great amount of the water was absorbed into the street itself and into the ground intervening between Center Street and said sewer. The natural flow of water falling on Center Street would be to a westerly direction and most of the water which falls on that street would not find its way into the sewer which runs underneath the plaintiff's house except for the action of the defendant in channeling the same therein by use of the aforementioned storm sewers which commence at Center Street and empty into that sewer. The direct result of the actions of the defendant in increasing the flow of water in the sewer underneath the plaintiff's house has been to cause an amount of water greatly in excess of the capacity of the sewer underneath the plaintiff's house to be emptied into the same during any normal rain. The great force of the water rushing through the sewer at the point where it crosses the plaintiff's property has caused holes to wash in the walls of the sewer, in the floor thereof, and in the top thereof so that on every occasion of even normal rainfall great volumes of water leave said sewer and wash into the ground surrounding it on the plaintiff's property. The effect of such action is to gradually wash away the ground and to undermine the foundations of the plaintiff's house. During the season of heavy rains occurring in January and February, 1948, the volume of water passing into said sewer by reason of the acts of the defendant was so great that great holes were washed out in the ground underneath the plaintiff's house and three pillars were undermined, causing one of them to sink at least six inches and the other two to sink approximately three inches each. The holes washed into the ground around said sewer are washed so that they are lower than the concrete floor of the sewer itself and consequently when they are filled during a rainfall, the water does not flow away, but remains in said holes underneath the plaintiff's house all the time and becomes stagnant, affords a breeding ground for mosquitoes, and renders the premises of the plaintiff sickening and unhealthy, which is dangerous to the health and life and safety of the plaintiff, her family, and her tenants. In April, 1948, the plaintiff's husband repaired some of the damage which had been done to one of the pillars by jacking up the house and filling with brick, rock and cement the hole which had been washed underneath and around said pillar and built said pillar back up to its normal height so as to give support to the plaintiff's house. Thereafter, the washing and undermining effect of the water's action continued and said pillar was again undermined and has now sunk again a distance of four or five inches. The effect of the pillars being caused to sink has been to greatly damage the plaintiff's house in that the sleeper of said house has left the floor at the bathroom door in the plaintiff's house and the bathroom door is now three inches above the floor, whereas before the action of the water from the sewer it was approximately flush with the floor. The sides of the rooms in the hall and bathroom of the plaintiff's house have pulled loose from the ceiling. The wallpaper has split in every direction in two rooms and the plaster on the walls in the hall has split and broken. The sinking of the pillars underneath the plaintiff's house removes the support therefrom and causes the house to be unsafe and dangerous to the life and health of the plaintiff and her family. As a result of all of said damage to the plaintiff's house, the plaintiff avers that the market value of the house has been decreased $1500 in that whereas the fair market value prior to the damage was $3500 and is now only $2000. The actions of the defendant in increasing the flow of water in said sewer beyond its capacity, and thereby damaging the plaintiff's property constitutes a nuisance and a trespass upon the plaintiff's property.

The allegations of count 2 are essentially the same as those set out above for count 1 with the following additional allegations: "9. Defendant more than twenty years ago began emptying various storm sewers into said ditch and has thereafter made regular use of and has exercised control over the same from its commencement at Emery Highway on past the point where it passes under petitioner's house and has from time to time made repairs to the same and has thus adopted and taken over the same as a part of its drainage system for that portion of the City of Macon. 10. Specially petitioner alleges that some time about the year 1942, the exact date of which is unknown to petitioner, but is peculiarly within the knowledge of defendant and is well known to the defendant, the defendant made repairs to said sewer in that it constructed concrete walls and a concrete floor for the same from the point where it leaves petitioner's property on the south on across the lot adjoining the petitioner's property on the south for a distance of approximately 50 to 75 feet. 11. During the year 1948, the exact date being unknown to petitioner, but well known to defendant, the defendant made repairs to said sewer at a point just west of Hydrolia Street in that defendant placed rock reinforcements along the sides of said sewer where it crosses the property of W. J. Glisson on Hydrolia Street. 12. Petitioner shows that over a period of at least 7 years, prior to the filing of this suit, and continuing to this date, the defendant has regularly removed tree limbs and other debris from said sewer at a point approximately 100 feet north of Main Street . . where the same empties into other storm sewer lines of defendant, and defendant has regularly repaired said sewer by removing accumulated sand and dirt therefrom at said point, which said work or removing debris, sand, and dirt has been done by defendant after every heavy rainfall and is still done at such times. 18. Defendant failed to increase the size or capacity of the sewer running underneath petitioner's home so as to take care of the additional surface water emptied therein by defendant and defendant wholly failed to make any plan or provision whatever for disposing of such additional water. 21. Defendant had actual notice of the condition of said sewer under petitioner's house and of its insufficient capacity to handle the volume of water emptying therein prior to the damage hereafter complained of and defendant negligently failed to repair or remedy said condition, which said notice defendant acquired when it made repairs and removed debris from said sewer as alleged in paragraph 13 [12?], the point where said repairs were made being sufficiently near petitioner's home for defendant's servants to observe the insufficient capacity of same at petitioner's property, which fact petitioner alleges they did observe; and the notice of the insufficient capacity of said sewer was further acquired when defendant made the repairs alleged in paragraphs 10 and 11. 30. All of the damage to petitioner's real estate herein alleged was caused by the negligence and neglect of defendant through its agents and servants in the following particulars: (a) In failing to keep in repair said sewer located on petitioner's property. (b) In failing to inspect said sewer for the purpose of keeping same in repair. (c) In failing to maintain the sewer under petitioner's home and the cover over the same so as to confine the water to the sewer itself and to prevent its escape onto the property of petitioner. (d) In failing to make any plan or provision for control or disposition of the water in said ditch or sewer after such water was emptied therein from storm sewers constructed by defendant leading to the same. (e) In failing to make any determination of the capacity of the sewer under petitioner's house to handle the volume of water emptying therein. (f) In failing to enlarge and increase the sewer under petitioner's house after notice that the same was of insufficient size and capacity therein. (g) In constantly increasing through a number of years as herein set out the paved surfaces of streets near to said sewer thus increasing the volume of surface water collecting on said street and channeling all of the same into said sewer running underneath petitioner's house without making any provision whatever for carrying off the increased volume of surface water. (h) In failing after notice of its inadequacy to enlarge the capacity of the said storm sewer underneath petitioner's house or to construct additional storm sewers to provide for the increased volume of surface water accumulating within the area surrounding the same as herein alleged due to the acts of defendant in enlarging the paved surfaces of streets in said general area. (i) In maintaining a defective storm sewer on petitioner's property and underneath her house the defect consisting in great inadequacy of the storm sewer by reason of the facts herein disclosed. 31. Petitioner alleges that the defective and inadequate condition of said storm sewer underneath petitioner's house as herein alleged whereby it overflowed during any normal rainfall constituted a continuing nuisance on and adjacent to petitioner's property, and that in addition to the acts of negligence specified in the preceding paragraph the said City of Macon was negligent in maintaining said nuisance on petitioner's property from which said nuisance petitioner sustained the injury and damage herein complained of. 32. The actions of defendant in increasing the flow of water in said sewer beyond the capacity of the same causing the same to overflow repeatedly onto petitioner's property and under petitioner's house, all as hereinbefore alleged, constituting a continuing nuisance and a periodic trespass upon petitioner's property."

The allegations of count 3 of the petition were essentially the same as those of count 1 with the following additional allegations: "24. All of the damages herein complained of have occurred since September 1, 1947. 25. The actions of defendant in increasing the flow of water in said sewer beyond the capacity of the same and thereby damaging petitioner's property, as herein alleged, amounts to the damaging by defendant of petitioner's private property for public purposes without just and adequate compensation being first paid in violation of Article I, Section 3, Paragraph 1 of the Constitution of the State of Georgia as embodied in Georgia Code Section 2-301, and petitioner brings this action to recover for the aforesaid damage to her property for public purposes for which no compensation has been paid."

To each count of the petition, the defendant filed general and numerous special demurrers. The court sustained the demurrers and the plaintiff excepted.

MacINTYRE, P. J.

1. "The officers in charge of the affairs of a municipal corporation may select places for the construction of a system of sewerage and drainage, and adopt a plan for such construction, without rendering the city liable in damages for injuries resulting from such selection and from the proper construction of the system. These officers may also, if it is necessary, take or damage property of private citizens in constructing the system of sewerage and drainage, but adequate compensation must be paid for property so taken or damaged. The same is true of the construction of any public improvement. City of Atlanta v. Green, 67 Ga. 386; Moore v. Atlanta, 70 Ga. 611; Roughton v. Atlanta, 113 Ga. 948 ( 39 S.E. 316). If a municipal corporation negligently constructs a system of sewerage or drainage, or negligently maintains one properly constructed, so as to injure private citizens or their property, it will be liable in damages for the injury thus occasioned. The power to construct and maintain a system of drainage does not carry with it the right to maintain it in such a way as to endanger the health of the inhabitants or injure their property." Langley v. Augusta, 118 Ga. 598, 598 ( 45 S.E. 486). "In the case of Goldsmith v. Elsas, May Co., 53 Ga. 186, it was decided that `where two city lots adjoin, the lower lot owes a servitude to the higher so far as to receive the water which naturally runs from it, provided the owner of the latter has done no act to increase such flow by artificial means.' This is in accordance with the rule of the civil law. By the civil law, the right of drainage of surface-water, as between owners of adjacent lands of different elevations, is governed by the law of nature. The owner of land which, relatively to that of an adjoining proprietor, is the lower estate, is bound to receive the surface-waters which naturally flow from the upper estate, provided the industry of man has not . . increased the servitude." Farkas v. Towns, 103 Ga. 150, 152 ( 29 S.E. 700). In the case of Mayor of Albany v. Sikes, 94 Ga. 30, the Supreme Court after a careful consideration of the common law rule and the civil law rule with regard to surface waters as related to adjoining property owners decided to follow "as the true law of this State the rule of the civil law; it being, of the two the sounder, the more consistent with natural justice and right, and the more in harmony with our system of law and the general conditions of the commonwealth of this State." Farkas v. Towns, supra. The City of Macon demurred generally to count 1 of the petition on the ground that it failed to set forth a cause of action. The plaintiff contends that the gist of the action in count 1 is not based upon mere negligence, but is based on nuisance and not mere negligence. These two doctrines should not be confused. "Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers [governmental functions.] For neglect to perform, or for improper or unskilful performance of their ministerial duties they shall be liable." Code, § 69-301. "In an action in tort against a municipality based on negligence [alone], a distinction is made [by the foregoing code section] as to liability, [a] dependent on whether the tort arose from negligence in the exercise of, or failure to perform, a governmental function, for which the municipality is not liable; or [b] whether it arose from negligence in the exercise of or failure to perform, a ministerial function, for which the municipality is liable." Foster v. Savannah, 77 Ga. App. 346, 348 ( 48 S.E.2d 686). In the case of an injury based upon negligence alone in the exercise of, or failure to perform, a governmental function the injury would be damnum absque injuria because the hurt would be without redress under Code § 69-301; and again, let us emphasize that this rule is not to be confused with nuisance. The plaintiff contends that this count is based on the separate and distinct theory of nuisance where no acts of negligence are an essential part or necessary ingredient of the cause of action set out in this count. "A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man." Code, § 72-101. "The rule is that while municipal corporations do have certain sovereign governmental powers which cannot be superintended by the courts, yet in the exercise of such powers they have no right to create and maintain a nuisance hurtful to private citizens." City of Macon v. Roy, 34 Ga. App. 603, 605 ( 130 S.E. 700). "Negligence is not even a necessary ingredient of a cause of action growing out of a nuisance. . . A nuisance may arise through acts and conduct done within the pale of the law and executed with due care; and yet if the result attained injures the property or individual rights of another by causing a nuisance, the maintainer must either abate the nuisance or else respond in damages. . . A nuisance is the result of an action which is not wrongful in itself, but only in the consequences which may flow from it." City of Macon v. Roy, supra. "It will be found upon examination that in the matter of overflowing the lands of another, there is a recognized difference between natural streams, passing within well defined and actual banks, and surface water caused by rain or melting snow. The obligation to keep the streets in repair involves the right to make changes in the surface of the ground, and although such changes affect the adjacent owners injuriously, where the power is not exceeded there is no liability. Neither is the municipality bound to protect one from the surface water who owns land below the level of the street. A municipal corporation is not liable to an action for consequential damages to private property or persons when the act done is pursuant to a power conferred [governmental function] and whether wise or unwise cannot be judicially . . corrected. 1 Dillon Mun. Co., § 59; 2 Ib. 781, 798, 799. . . Each [adjacent property owner] bought and improved with the knowledge that the right existed in the city over the streets to work, to raise, to grade, to drain, and unless that legal right was exceeded, it would be a case of damnum absque injuria. The case of a private or public nuisance is not to be confounded with those enumerated." Mayor c., of Americus v. Eldridge, 64 Ga. 525, 528. "In the location of sewers and drains, and perhaps in determining their dimensions, municipal authorities exercise a judicial or legislative discretion, and are no more liable for such injury as happens, without negligence, to adjacent land owners, in consequence of the location and dimensions of said drains than they are for the injuries resulting from fixing the grade of streets. Such injuries may be `damnum absque injuria.' But after the dimensions have been agreed upon or determined, they are liable in damages for negligence in constructing the sewers or drains, and they must be kept in order just like streets — must be kept in good condition, and the liability for the consequences of non-repair is the same as in case of a street." Mayor c. of Savannah v. Spears, 66 Ga. 304, 308; and see Mayor c. of Brunswick v. Tucker, 103 Ga. 233 ( 29 S.E. 701). "Although a system for the drainage of surface-water from the streets of a city may be sufficient for that purpose at the time of its installation, yet where, by reason of changed conditions, due to the erection of buildings which shed water into the streets, and to the construction of pavements in the streets, both of which prevent the natural seepage of surface-water into the ground and thereby concentrate and augment the volume of water flowing through the streets, the drainage system becomes inadequate to carry off water accumulating in the streets from ordinary rainfall, by reason of which condition the water precipitated into the streets during a rainfall is not drained with sufficient rapidity to prevent its overflowing upon adjoining premises, and where the situation is known to the city, its maintenance thereafter by the city constitutes a nuisance, and the city may be liable for resulting damage therefrom to adjacent property owners. Langley v. Augusta, 118 Ga. 590 (8) ( 45 S.E. 486, 98 Am. St. R. 133); Mayor c., of Waycross v. Houk, 113 Ga. 963 (2) ( 39 S.E. 577); 4 Dillon on Municipal Corporations, § 1745; City of Macon v. Roy, 34 Ga. App. 603 ( 130 S.E. 700)." City of Macon v. Macon Paper Co., 35 Ga. App. 120 (1) ( 132 S.E. 136). The allegations of this count of the petition bring it well within the rule relating to a municipality's liability for creating or maintaining a nuisance and the facts alleged are in many respects strikingly similar to those of the Macon Paper Company case, supra, which was held by this court to state a cause of action. We wish to call especial attention to the following statement in Bass Canning Company v. MacDougald Construction Co., 174 Ga. 222, 224 ( 162 S.E. 687): "`It is contended, that as the city had the right to establish a system of "grading and drainage" by its charter, it is not liable for damages done to private citizens if the same was done skilfully. With this view we do not concur. The grading and drainage must be done so that the same will not prove a nuisance to the citizens, impairing the health of families and producing noxious scents thereby rendering the enjoyment of their property impossible. If it be so done, the city will be liable for damages.' Smith v. Atlanta, 75 Ga. 110. It was further said in the Smith case: `This sewer was and is under the control of the city; if it be a nuisance and the city has not abated it, no one else could; not having abated it, the city may be said to have maintained it and kept it up, and it is thereby a continuing nuisance, for the maintenance of which the city is liable.'" It was in this case that the Supreme Court reversed the case of MacDougald Construction Co. v. Bass Canning Co., 42 Ga. App. 533 ( 156 S.E. 628), which cites City Council of Augusta v. Lamar, 37 Ga. App. 418 ( 140 S.E. 763). "Manifestly, power to construct a system of sewers and drains does not authorize the municipal corporation to create a nuisance. In such a case the city cannot escape liability on the ground that it is engaged in the performance of a governmental function." 4 McQuillin, Municipal Corporations (2d, ed. revised), p. 412, § 1557; Delta Air Corporation v. Kersey, 193 Ga. 862, 870, ( 20 S.E.2d 245). It follows that the court erred in sustaining the general demurrer to this count of the petition.

2. Count 2 of the petition contained all the allegations of count 1 and an allegation was added that the defendant made regular use of the sewer and exercised control over it for more than 20 years and had thus adopted and taken over the sewer as a part of its drainage system and had made repairs to it. It was further alleged that all of the damage to the plaintiff's real estate was caused by the negligence and neglect of the defendant through its agents and servants and this negligence and neglect was specifically set out. Thus, we see that count 2 is also based on the theory of nuisance, and the allegation of the many acts of negligence is included, not as the gist of the cause of action but to explain or make clearer the gist of the cause of action founded on the wrongful (which happened here to be the negligent) acts in creating or maintaining the nuisance, and the court erred, therefore, in sustaining the general demurrer to this count.

3. The allegations of count 3 are essentially the same as those of count 1 and count 2. The major addition was the allegation that the plaintiff's property had been damaged in violation of article 1, section 3, paragraph 1 of the Constitution. From what has been said in division 1 of this opinion, this count stated a cause of action for nuisance, and the court erred in sustaining the general demurrer to this count. Nothing that is legal in its erection can be a nuisance per se. The manner of its being kept might become so. Bacon v. Walker, 77 Ga. 336, 338; Austin v. Augusta Terminal Railway Co., 108 Ga. 671 (1) ( 34 S.E. 852).

4. The defendant demurred specially to count 3 of the petition on the ground that it is duplicitous "since it seeks to set forth two causes of action in a single count, one based on the law of nuisance for the maintaining of a situation endangering life and health, and the other based on damaging private property without compensation contrary to the Constitution of the State of Georgia as set forth in Section 2-301 of the Code of Georgia." The defendant also demurred specially to the petition as a whole upon the ground that it seeks to allege causes of action not of a similar nature, in that counts 1 and 2 are based on nuisance while count 3 is based on the damaging of private property for public uses in violation of Code § 2-301. These special demurrers may be disposed of together. Prior to the Constitution of 1877, that section of the Code read: "In cases of necessity, private ways may be granted upon just compensation being first paid; and, with this exception, private property shall not be taken, save for public use, and then only on just compensation to be first provided and paid, unless there be a pressing, unforeseen necessity; in which event the General Assembly shall make early provision for such compensation." Constitution of 1865, art. 1, paragraph 17. By the Constitution of 1877 this section was amended to read: "In cases of necessity, private ways may be granted upon just compensation being first paid by the applicant. Private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid." In construing this clause of the Constitution of 1877 the Supreme Court said in Austin v. Augusta Terminal Railway Co., 108 Ga. 671 (1) (supra): " . . the word damaged is used in its usual sense as a law term, and does not change the substantive law of damages, or create a cause of action where none previously existed; nor does it abrogate the principle expressed in the phrase `damnum absque injuria'; but it does preserve all existing causes of action for damages to private property and prohibit exemptions of liability for such damages, even if occasioned by public uses." In Mayor c., of Albany v. Sikes, supra, the court held: "Before the ratification of the present constitution of this State [Constitution of 1877] the owner of private property actually taken for public use was undoubtedly entitled to compensation; but where such property was merely damaged in the prosecution of a public work, it was damnum absque injuria. Our Constitution now provides that: `private property shall not be taken or damaged . .' It follows that where a municipal corporation, in the exercise of a statutory power authorizing it to erect and maintain city water works, in so doing injures or damages the private property of a citizen, that corporation will be liable to make compensation in damages, if an individual would be liable for causing injuries or damages of the same kind." In this connection see City of Atlanta v. Green, 67 Ga. 386 (supra); Mayor c. of Macon v. Wing, 113 Ga. 90 ( 38 S.E. 392); Long v. Elberton, 109 Ga. 28 ( 34 S.E. 333). The allegations of count 3 were essentially the same as those of counts 1 and 2 with the additional allegation that "the actions of the defendant in increasing the flow of water in said sewer beyond the capacity of the same and thereby damaging the petitioner's property, as herein alleged, amounts to the damaging of the petitioner's property for public uses without just and adequate compensation being first paid in violation of article 1, section 3, paragraph 1 of the Constitution of the State of Georgia. We do not here pass upon the question whether or not the third count states a cause of action, that question has been answered in the foregoing divisions of this opinion. The only questions here are whether this additional allegation that the defendant's action violated the specified section of the Constitution added another cause of action thereby making the count duplicitous or misjoins counts 1 and 2 with count 3. We think that both of these questions must be answered in the negative. It was not necessary to make this additional allegation at all. It could, however, be made as a general averment for the purpose of obtaining a decision on the special facts pleaded. As shown by the foregoing authorities, if the plaintiff had a cause of action for damage to private property her action would lie against the city. "It is regularly necessary in pleading to state nothing except facts, and as the case may be, conclusions from them; or in other words, nothing except facts as they really exist, or are, by legal fiction or presumption, deemed to exist. It is of course unnecessary, generally speaking, to allege matter of law. For the judges are always presumed . . to know judicially what the law is." Will's Gould on Pleading (6th ed.) p. 200. Because the pleader alleges the conclusion that a nuisance caused the damage — or any other conclusion as to what caused the damage is immaterial. It is the allegations of fact which determine her cause of action and if she had a cause of action at law under those facts, all the Constitution of 1877 did was to say that she might pursue that cause of action against the city. The rules of law relative to damage to private property remained just as they had been before, no new cause of action was created. The Constitution of 1877 merely removed the city's exemption from liability. The court therefore erred in sustaining these special demurrers.

5. In view of what we have previously held, that a cause of action was set forth in each of the three counts for maintaining a nuisance, the notice given the city was sufficient and in compliance with Code § 69-308. The notice was in fact a copy of the original petition which sought to state a cause of action for nuisance in one count and certainly apprised the defendant of such facts as would enable it to investigate the merits of the case stated in the three counts of the petition, as amended. No new or different cause of action was added by the amendment. A substantial compliance with this section of the Code is all that is required. City of Sandersville v. Stanley, 10 Ga. App. 360 (2) ( 73 S.E. 535), and citations.

6. Under the view which we have taken of the petition, none of the remaining special demurrers was meritorious.

For the foregoing reasons the court erred in sustaining the general and the special demurrers to the petition.

Judgment reversed. Gardner and Townsend, JJ., concur.