Opinion
38634.
DECIDED APRIL 4, 1961.
Action for damages. Richmond Superior Court. Before Judge Kennedy.
Fulcher, Fulcher, Hagler Harper, E. D. Fulcher, Wm. C. Reed, for plaintiff in error.
Isaac S. Peebles, Jr., Jay M. Sawilowsky, contra.
1. A cause of action was stated in each of the three counts of the petition, and the trial court did not err in overruling the demurrers thereto.
2, 3. The trial court did not err in denying the amended motion for a new trial.
DECIDED APRIL 4, 1961.
This was an action for damages brought by Eugene Thorp against M. Gary Satcher, the Gary Satcher Realty Co., the Gary Satcher Construction Co. and the City Council of Augusta. The petition, as finally amended, was brought in three counts. Count I alleged that the plaintiff is the owner of certain described real property located on Kentucky Avenue approximately fifty (50) feet from its intersection with Damascus Road and approximately seventy-five (75) feet downhill from a new subdivision being built by the defendants, M. Gary Satcher, the Gary Satcher Realty Co., and the Gary Satcher Construction Co., known as Daniel Heights, in the City of Augusta; that the real estate known as Daniel Heights was acquired by the defendants from the City Council of Augusta who retained ownership of the streets in the subdivision, and who, as a condition of sale and development of the property, agreed to install water and sewer lines, and that the defendants, M. Gary Satcher, the Gary Satcher Realty Co. and the Gary Satcher Construction Co., as a condition of the sale, agreed to pave, curb and gutter the streets in the said subdivision in accordance with plans and specifications prescribed by the City Council of Augusta; that in accordance with the said plans and specifications, M. Gary Satcher, the Gary Satcher Realty Co., and the Gary Satcher Construction Co., during the months of January through May of 1958, paved, curbed and guttered the streets in the said subdivision including Lamar Road and Damascus Road; that the said Damascus Road was paved to within two hundred (200) feet of its intersection with Kentucky Avenue, that being the point at which these defendants were to stop paving, and that thereafter the paving, curbing and guttering was approved and accepted by the City Council of Augusta; that since January of 1958, M. Gary Satcher, the Gary Satcher Realty Co. and the Gary Satcher Construction Co. have constructed many houses in the subdivision, the exact number being unknown to the plaintiff; that the plans and specifications of the City Council of Augusta did not provide for the drainage of surface water on the streets anywhere but downhill in the direction of the plaintiff's property, and that this condition was known to the City Council of Augusta and to all the other defendants, yet even after the the first flooding of the plaintiff's property, the City Council of Augusta took no effective steps to correct the aforesaid condition, which was and is a nuisance; that the paving, curbing and guttering of the streets in the subdivision merely provided for the channeling of surface water arriving upon the streets downhill in the direction of the plaintiff's property; and that the effect of the construction was to divert, collect, and channel all of the surface water on the streets downhill in the direction of the plaintiff's property; that prior to the construction of the Daniel Heights Subdivision, the plaintiff had very little drainage of surface water onto his property but now at every rain a tremendous quantity is thrown onto, over and across the plaintiff's property causing great flooding, which is a nuisance dangerous to life and health due to the said flood waters standing beneath the plaintiff's house and on at least four occasions the waters have flooded the interior of the plaintiff's house; that the rush of water across his property has swept away topsoil and washed away the ground beneath the foundation of his home causing certain damage thereto; that all of the aforesaid damage to the plaintiff's house was caused by the negligence of the defendants in so constructing, paving, curbing and guttering the said streets in such a manner as to collect, divert, and channel all the surface water onto and across the plaintiff's property.
Count 2 of the petition restated each of the allegations of count 1 and in addition thereto alleged that prior to the construction of Daniel Heights Subdivision, the plaintiff had very little drainage of surface water on his property, and that the system for the drainage of surface water from the streets in the area was sufficient for that purpose but that by reason of the changed condition due to the construction of houses and the construction of pavements on the streets, the natural seepage of surface water was prevented and said changed condition concentrated and augmented the water flowing through the streets, and that the drainage system had become inadequate to carry off the water so accumulated with sufficient rapidity to prevent it overflowing upon the plaintiff's property, and that this condition was known to the City Council of Augusta, yet the said City Council of Augusta maintained the said drainage system in an inadequate condition; that the City Council of Augusta had failed and neglected to pave and provide for the drainage of surface water in the section of Damascus Road from the intersection of Damascus Road and Kentucky Avenue to the point west of said intersection where the defendants, M. Gary Satcher, the Gary Satcher Realty Co., and the Gary Satcher Construction Co. finished their portion of the street paving; that at every rain a tremendous amount of water is collected on the streets of the subdivision and flows downhill into the intersection of Damascus Road and Lamar Road and then flows down Damascus Road eastward towards its intersection with Kentucky Avenue, and when the water reaches a point where the pavement ends, it turns southward and flows down onto and across the property of the plaintiff; that the City Council of Augusta has a duty by law to have corrected the aforesaid condition by the proper paving, curbing and guttering of the area between the end of the existing pavement on Damascus Road and the intersection of Damascus Road and Kentucky Avenue so that the said water would flow to the said intersection and then down Kentucky Avenue without coming onto and across the plaintiff's property.
Count 3 of the petition restated each of the allegations in count 1 and count 2 and in addition thereto alleged that the City Council of Augusta had the duty by law to construct the aforesaid drainage system properly so as to avoid damaging the plaintiff's property; that the aforesaid drainage system was improperly constructed as the said City Council of Augusta did not properly pave, curb and gutter the section of Damascus Road as referred to above and as a result of this failure, the rain water, instead of continuing eastward to the intersection of Kentucky Avenue and Damascus Road and then draining off down Kentucky Avenue, turned and flowed downhill onto and across the plaintiff's property.
The trial court overruled the defendant's demurrers to the petition as amended, and the case proceeded to trial before a jury which returned a verdict in favor of the plaintiff on all three counts of the petition. The trial court denied the amended motion of the City Council of Augusta for a new trial and it excepted to this court, assigning error on the order of the trial court overruling its demurrers to the petition and denying its amended motion for a new trial.
1. "A general grant of power to grade streets and to establish in connection therewith a system of drainage does not carry with it any right on the part of the municipality to create and maintain a nuisance by causing surface-water to be discharged upon the premises of a private citizen; and he may, when such a thing has been done, maintain against the city an action to recover the damages sustained in consequence thereof." Bass Canning Co. v. MacDougald Construction Co., 174 Ga. 222 (1) ( 162 S.E. 687). See City of Macon v. Roy, 34 Ga. App. 603 ( 130 S.E. 700); Cannon v. City of Macon, 81 Ga. App. 310 ( 58 S.E.2d 563). Under the principles of law enunciated in the above-cited cases the instant petition clearly stated a cause of action against the defendant city council for damages which resulted from the creation and maintenance of the alleged nuisance by said defendant and its joint tortfeasors (the other defendants in this case). The mere fact that the allegations of the petition disclose that the actual construction of the streets and drainage system in question was done by the other defendants in this case, who were the developers of the subdivision, does not defeat the cause of action against the city council since it is alleged that the city council drew up the plans for the said street construction, contracted with the developers to construct these streets in accordance with these plans, and then approved the work after it was done as being in accordance with said plans. There is no material difference or distinguishing feature between the allegations of the instant petition and of the petition in the Bass Canning Co. case, supra, wherein it was alleged that the actual construction had been performed by a private contractor under contract with the city. In the instant case the city was a party to the contract with the developers, under which the developers were responsible for the necessary construction according to plans and specifications of the city. As to counts 2 and 3 of the petition, see also: City of Macon v. Macon Paper Co., 35 Ga. App. 120 (1) ( 132 S.E. 136); Langley v. City Council of Augusta, 118 Ga. 590, 598 ( 45 S.E. 486, 98 Am. St. Rep. 133); Mayor c. of Savannah v. Spears, 66 Ga. 304; City of Atlanta v. Holcomb, 20 Ga. App. 601 ( 93 S.E. 259).
A cause of action was stated in each of the three counts of the petition, and the trial court did not err in overruling the demurrers thereto.
2. Instructions inapplicable to the pleadings and the evidence should not be given to the jury. "However, `to justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.' Holland v. Long, 57 Ga. 41 (3); King v. State, 77 Ga. App. 539, 540 ( 49 S.E.2d 196)." Pope v. Associated Cab Co., 90 Ga. App. 560, 561 ( 83 S.E.2d 310); Carroll v. Hayes, 98 Ga. App. 450, 455 ( 105 S.E.2d 755). The special grounds of the amended motion for a new trial, which assigned error on two excerpts from the charge of the court as being unauthorized by the pleadings and evidence in this case, are without merit.
3. The evidence adduced on the trial of the case authorized the finding that the flooding of and damage to the plaintiff's property was occasioned by and resulted from the acts of the defendant alleged in the plaintiff's petition, and that the same did constitute a continuing nuisance. Accordingly, the general grounds of the motion for a new trial are without merit.
The trial court did not err in denying the amended motion of the defendant City Council of Augusta for a new trial.
Judgment affirmed. Townsend, P. J., Carlisle and Frankum, JJ., concur.