Opinion
41142.
ARGUED FEBRUARY 2, 1965.
DECIDED JUNE 17, 1965. REHEARING DENIED JULY 20, 1965.
Action for damages. Baldwin Superior Court. Before Judge Carpenter.
Frank O. Evans, Hansell, Post, Brandon Dorsey, Jule W. Felton, Jr., for plaintiff in error.
Miller, Miller Miller, Wallace Miller, Jr., Troutman, Sams, Schroder Lockerman, Robert L. Pennington, contra.
1. A complaint, in special ground 4 of the motion for new trial, that the court failed to charge a principle of law that the defendant had the right to let off water from time to time from the reservoir of its dam for the purpose of carrying out the objects thereof, provided "it was done with the care of a prudent person who had his crops growing in the fields below" is without merit. That the charge set forth in this ground was in the exact language of a ruling in Brown v. City of Atlanta, 66 Ga. 71, giving a synopsis of charges approved in that case, does not necessarily make such language appropriate as a charge for the jury in the present case. The facts stated in the charge set forth in this ground were not appropriate or applicable here where damage to crops was not involved. See Hogan v. Hogan, 196 Ga. 822 (4) ( 28 S.E.2d 74).
2. Special ground 6 complains of the following charge: "If you believe from the evidence that high water which flooded the plaintiff's plant was as act of God as the court has just defined to you, it would be your duty to end your deliberations there and return a verdict for the defendant, and you would not consider any claim of negligence or lack of negligence on the part of either."
"To disconnect a sentence in the judge's charge from what precedes and follows it, gives no just conception of its meaning, import or legal effect and this court cannot consider it, except as it stands related to the other instructions given to the jury." Wilson v. State, 69 Ga. 224, 240 (7). Immediately prior to the charge complained of the court had charged as follows: "A catastrophe or flood arising from the force of elements which human intelligence cannot predict nor the ingenuity of man can foretell is what is called an act of God." The charge complained of as given was correct as an abstract principle of law. The charge complained of did not refer to the rain as an act of God, but to the high water which flooded the plaintiff's plant as being act of God. Construing the charge complained of with the definition of an act of God given immediately prior thereto, the charge complained of could not be construed as authorizing a finding for the defendant where the act of God was not the sole proximate cause of the damage to plaintiff. This ground of the motion for new trial is without merit.
3. Ground 7 of the motion for new trial complains of the failure to give a charge relating to damages resulting from overflow caused by an obstruction in a stream. The failure to give such a charge is not error here because such charge is not adjusted to the facts of the present case where the damages were caused by high water below a dam allegedly resulting from excessive water being released from the reservoir.
4. Where part of the charge excepted to is only part of a sentence, or an uncompleted fragment of a sentence, an assignment of error thereon raises no question for decision. Loudermilk v. State, 41 Ga. App. 286 (2) ( 152 S.E. 593); Leath v. State, 41 Ga. App. 371 (1) ( 153 S.E. 91); Grant v. Maxwell, 160 Ga. 612 (2) ( 128 S.E. 803); Bennett v. State, 169 Ga. 367 (2) ( 150 S.E. 100).
When the charge excepted to consists of a combination of widely scattered excerpts from the charge of the court such exception is insufficient to call for any ruling by this court. Cole v. Pepsi-Cola Bottling Co., 65 Ga. App. 204, 211 (3) ( 15 S.E.2d 543).
Upon application of the above rulings, grounds 20, 25 and 28 of the amendment to the motion for new trial cannot be considered by this court.
5. The owner and operator of a hydro-electric dam is under no duty to operate such facility for the purposes of flood control as to a lower riparian owner, and as to such owner may maintain the reservoir at any particular level it sees fit so long as the storing of "excessive" water does not create an emergency causing, or necessitating, the dumping of such water to the injury of the owner below. It follows, therefore, that the charge of the trial judge in accordance with this rule, and the failure to charge to the contrary, complained of in grounds 5, 9, 10 and 11 of the motion for new trial, are without merit.
6. The charges complained of in grounds 12, 16, 17 and 18 of the motion for new trial are in accord with the charges approved in Brown v. City of Atlanta, 66 Ga. 71, supra, and are not error for any reason assigned.
7. The charge on damages excepted to in grounds 21 and 23 of the motion for new trial, even if erroneous, affected only the amount of damages and did not authorize the finding of no damages, and the jury having found a verdict for the defendant, such error is harmless and does not require a reversal. Carstarphen v. Central of Ga. R. Co., 8 Ga. App. 162 ( 68 S.E. 848); Cohen Bros. v. Krumbein, 28 Ga. App. 788 (3) ( 113 S.E. 58); Phillips v. Georgia R. c. Co., 27 Ga. App. 21 (1) ( 107 S.E. 357); Union Brokerage Co. v. Fine, 30 Ga. App. 788 (2) ( 119 S.E. 343); Daughtry v. Georgia Power Co., 61 Ga. App. 505, 506 (9) ( 6 S.E.2d 454).
8. Whether or not the charge complained of in ground 19 was (a) a charge relating to the duty of plaintiff to exercise ordinary care in lessening damages, or (b) a charge relating to the duty of plaintiff to exercise care to avoid the negligence of the defendant, it was not error for any reason assigned. In the first event, the verdict being for the defendant, it would not be error even though it "might necessarily have relieved the defendant from any damages" ( Donaldson v. Central of Ga. R. Co., 43 Ga. App. 480, 483 ( 159 S.E. 738); and, in the second event, the mere statement of facts in charging on a contention of a party is not an expression of opinion that such facts have been proven.
9. The ruling in Jackson v. Matlock, 87 Ga. App. 593 (4) ( 74 S.E.2d 667) that it is error to charge that, "if the jury should find that the plaintiff and the defendant were equally negligent, the plaintiff would not be entitled to recover, without instructing the jury in connection therewith that the negligence of the plaintiff which would bar his recovery under such rule must have proximately contributed as a cause of the injury received by the plaintiff," has no application here where the charges complained of in grounds 13 and 14 of the motion for new trial, which charges were given in sequence, refer to the negligence of the plaintiff and the defendant as negligence "which contributed to plaintiff's injury." If the plaintiff desired a more particular charge as to proximate cause in connection with comparative negligence, it should have requested the same, and the complaint of the failure to give such a charge made in ground 29 of the motion for new trial is without merit.
10. Ground 26 complains of the failure of the trial judge to give, without request, a charge set forth in that ground relating to the rights and duties of the operator of a dam as to the lower riparian owner. While this charge was taken from the case of Brown v. City of Atlanta, 66 Ga. 71, and was held not to be erroneous in that case and might not have been erroneous here, if given, the charge set forth was not adjusted to the facts by reason of the following language contained therein: "The [defendant] would have no right to let off more water or at greater rate than would be safe and prudent to proprietors below, when the channel was open and free to receive it and carry it off, and if no more than that was discharged from the dam, the defendant would not be liable, whether the plaintiff was injured or not." The case here involved a situation where the channel below was not open and free but was at a flood stage. This portion of the charge, therefore, would not have been appropriate or adjusted to the facts here, and it was not error to have failed to give such charge. See Terry v. Fickett, 199 Ga. 30, 31 (9) ( 33 S.E.2d 163); Fountain v. Smith, 103 Ga. App. 192 (3) ( 118 S.E.2d 852). "A refusal to charge a principle of law not adjusted to the facts disclosed by the evidence is not error. A fortiori it is not error to omit to charge such a principle in the absence of a request." Mitchem v. Allen Barrow, 128 Ga. 407 (3) ( 57 S.E. 721).
11. All of the other assignments of error as to the charges given and failures to charge already dealt with, and the other grounds of the motion for new trial, have either been abandoned or are without merit. The evidence was amply sufficient to authorize the verdict for the defendant.
ARGUED FEBRUARY 2, 1965 — DECIDED JUNE 17, 1965 — REHEARING DENIED JULY 20, 1965.
The present case is a suit for damages to machinery, merchandise and manufacturing materials caused by high waters and brought by a plaintiff whose plant was located on Fishing Creek and upstream from a bridge thereon. The defendant's dam was approximately four miles upstream on the Oconee River from the confluence of that stream with Fishing Creek. There was a verdict for the defendant and the plaintiff brings error to this court based on exceptions to various charges of the court as given and to the failure of the court to give in charge to the jury various charges set out in the grounds of the motion for new trial. There seems to be a basic disagreement between the parties as to the law of this State relating to upper and lower riparian owners in the situation here involved as set forth in headnote 5 which requires further elaboration.
Plaintiff contends it is the law of this State that the owner and operator of a dam must anticipate freshet and flood conditions and operate its dam so as to have storage capacity to meet such anticipated conditions, and in effect operate the dam as a flood control dam. There are exceptions to charges given and exceptions as to the failure to charge which are dependent upon the validity of this claim.
A proper decision of this case (on some of the exceptions to the charge as given and to the failure to give certain charges without request) depends upon the answer to two questions: (1) What is the duty owed by the owner and operator of a hydro-electric dam to a lower riparian owner? and, (2) has the "law of the case" here, by reason of the overruling of the special demurrers to certain allegations of negligence in the petition, established a different rule solely applicable to the present case? The case of Brown v. City of Atlanta, 66 Ga. 71, seems to be the leading case in this State on the subject of the rights and duties of the owner and operator of a dam such as that involved in the present case. In that case, the following charges were approved as against the assignments of error thereon: "3. "The city had in law a right to construct the waterworks and to dam up and obstruct the water so far as proper and necessary therefor, and it was the plaintiff's right to have his land exempt from any more injuries and negligent overflow of his land by water than would have gone over it by the laws of nature. It is not his right to have it come in the same undisturbed volume as it would have gone over it by the laws of nature. It is not his right to have it come in the same undisturbed volume as it would have come by nature, or that high water from rains should occur on his land at the same exact time it would have come, but his right would be that such high water should not be more injurious. If there was injury caused to plaintiff's land by unnecessarily or negligently turning water out of the dam which injury would not have happened at all but for such wrongful turning out of water, he could recover; but if the same freshet or a more injurious one would have reached his land anyhow, though at an earlier date, he could not recover. There could be no recovery for injury done, if any, by water running out over the storm channels any more than would be by water passing any ordinary mill dam or factory dam.'
"4. `The city or its agents would have the right to let off the water for all proper purposes of the works, if done in such quantities as would keep within and not overflow the adjacent lands below, when the stream was in its ordinary condition — its condition not in the time of floods or freshets, but its condition generally and at ordinary times between freshets, and if the water was let off in quantities no greater than the channel would reasonably contain within the banks at ordinary times, then if it happened that on some occasion or occasions, the channel was already in whole or in part filled or occupied by high water, so that there was not room for both together to flow off harmlessly, and in that manner the plaintiff's lands were overflowed, this would give no cause of action. The court is of opinion that, at such times of high water or partially high water, the city would not have to stop reasonable and proper operation any more than any factory or mill would have to stop the water from its wheels in like times for fear of making or increasing an overflow below. The city would have no right to let off more water or at greater rate than would be safe and prudent to proprietors below, when the channel was open and free to receive it and carry it off, and if no more than that was discharged from the dam, the defendant would not be liable, whether the plaintiff was injured or not. If more was discharged and plaintiff's crops were injured thereby, then he could recover for the injury to the extent of the same.'
"5. `Again, it would be the duty of the city and its officers and agents having charge of the works, to use ordinary diligence in letting off the water, that is, to take such care as a prudent person would take were the whole risk his own. If you find that the water was let off for causes that were reasonable and proper, and was done with appliances adapted for the purpose, at a rate no greater than a prudent person would, by those causes and using that dam and those appliances, have used and deemed safe to himself had he been also proprietor, as plaintiff was, on the stream below there, the plaintiff would not recover.'
"6. `That the plaintiff's land was injured would not be sufficient. It must further appear that the negligence caused the injury or injuries; not that it contributed to injury or injuries mainly arising from other causes. The defendant's negligence must be the chief cause, the preponderating, controlling cause, before it could be the subject of a recovery. If the injury or injuries in question were caused mainly by heavy rainfalls escaping through the water-works' stream or coming down in other streams, pouring in above plaintiff's land, and if these were the main, substantial, preponderating causes of the overflow of plaintiff's land, then he could not recover, even though there was negligence, and even though such negligence added to or increased the injury in some minor and uncertain degree. The negligence complained of must be the main, controlling and preponderating cause, ascertained and distinguished from other causes, in order to be the subject of a recovery.'"
The case of Brown v. City of Atlanta was followed generally in Carroll v. City of Atlanta, 74 Ga. 386. We think that a reading of these approved charges clearly indicates that there is no duty on the part of the owner and operator of a hydro-electric dam to operate the dam as a flood control mechanism, and this seems to be the rule in most other states. See Iodice v. State, 303 N.Y. 740 ( 103 N.E.2d 348); Ireland v. Henrylyn Irr. District, 113 Colo. 555 ( 160 P.2d 364); Smith v. East Bay Municipal Utility Dist. 122 Cal.2d 613 ( 265 P.2d 610); Trout Brook Co. v. Willow River Power Co., 221 Wis. 616 (4) ( 267 N.W. 302).
In Grant v. Kuglar, 81 Ga. 637 ( 8 S.E. 878, 12 ASR 348, 3 LRA 606), the court, speaking through Chief Justice Bleckley said: "The principle upon which we rule this case is, that water having a time relation, as well as a space relation, both of them being fixed by nature, there is no more right in an adjacent proprietor to alter the one than the other. If the time relation of the stream is so altered that the effect of the water upon the lower tract is injuriously different from what it was by the natural flow of the stream, then a wrong has been done to the proprietor of the lower tract. We think that the owner of water has no more right artificially to project it forward on another man's land, than he has to push it back upon land in his rear; and if by so doing he causes damage, he ought to answer for it." This statement may seem at first reading, to be contrary to charge No. 3 approved in the Brown case, supra. In our opinion, however, the qualifying words "injuriously different" modify the first sentences of the above statement so that there is no conflict between it and the principles announced in the Brown case. It thus appears that any claim by a lower riparian owner against the owner and operator of a dam above him because of high water must necessarily be based upon the negligent release of excessive water from the reservoir behind the dam. Such an action cannot be based upon the negligent storing, unless the negligent storing of water caused or forced the release of excessive water such as a break in the dam itself or release of excessive water to prevent damage to the dam, or a break therein. See Dover v. Georgia Power Co., 46 Ga. App. 630 ( 168 S.E. 117).
A statement in 56 Am. Jur. 521, Waters, § 32, that "the general rule is that one who obstructs a natural watercourse or places a structure therein, even in the exercise of a lawful right to do so, must take proper precautions to prevent injury therefrom to others by the action of anticipatable floods" is not contrary to what we have stated above. This statement in Am. Jur. has reference to damage caused by backwaters. See Goble v. Louisville c. R. Co., 187 Ga. 243 ( 200 S.E. 259), cited to support the statement in Am. Jur. For statement relating to release of water from a dam on a water course, see §§ 170, 171 on page 637. The ruling in Bruton v. Carolina Power Light Co., 217 N.C. 1 ( 6 S.E.2d 822), does not require a different ruling.
It is contended by the plaintiff, that if the law of this State does not require the operation of a dam for the purposes of flood control, the law of the case as established by the overruling of special demurrers to allegations of negligence contained in the petition, unexpected to, does, and that this law of the case should apply. This contention is based upon the overruling of special demurrers to the allegations of negligence contained in paragraph 34 (a) of the petition, as follows: "In maintaining its reservoir at peak capacity when weather and inflow conditions were such as to reasonably indicate an immediate and continuing need for additional controllable storage capacity." The demurrer was on the grounds that "there was no legal obligation on defendant to maintain its reservoir below peak capacity so as to be able to catch or store unprecedented floods coming into its reservoir." (Emphasis by the court). It is obvious that this demurrer is a speaking demurrer as the allegation of negligence makes no mention of unprecedented floods, that is, unforeseeable floods, but refers solely to indicated, and thereby foreseeable, inflow of water into the reservoir. A speaking demurrer, or a demurrer which is so defective as to be ineffective as a demurrer, should be overruled. See Oxford v. Shuman, 106 Ga. App. 73 ( 126 S.E.2d 522); Stembridge v. Family Finance Co., 49 Ga. App. 353 (2) ( 175 S.E. 663). It follows that the overruling of such a demurrer did not establish as the law of the case that the defendant was under such a duty as indicated by the allegation of negligence, but it will be presumed that it was overruled because it was defective as a demurrer. See Stembridge v. Family Finance Co., 49 Ga. App. 353, supra. The result here is the same as if the paragraph were undemurred to insofar as establishing the law of the case is concerned. Scottish Union c. Ins. Co. v. Peoples Credit Clothing Co., 61 Ga. App. 316, 318 ( 6 S.E.2d 178). However, irrespective of whether the law of this State would allow a recovery for the negligent storing of water, or whether the law of the case to that effect has been settled by the overruling of demurrers to the allegations of negligence, there was no evidence to sustain the contentions of the plaintiff (1) that the defendant should have anticipated a flood and increased the storage capacity of the reservoir so as to control it; and (2) that the negligent storing of the water created an emergency necessitating the release of excessive water from the reservoir. The evidence disclosed that the weather forecast available to defendant indicated something over one inch of rain, whereas approximately four inches actually fell, and that the rain in excess of the forecast caused the flood. Under these circumstances, the exceptions to the charge of the court instructing the jury that the defendant was under no duty to operate the dam as a flood control dam and had the right to maintain the reservoir at any level and instructing the jury to disregard any allegations or evidence to the contrary (grounds 5, 9, 10 and 11 of the motion for new trial), are without merit, as a finding based on such alleged negligence was not authorized by the evidence. Judgment affirmed. Nichols, P. J., concurs. Eberhardt, J., concurs in judgment.