Opinion
37562.
DECIDED APRIL 8, 1959.
Action for damages. Cobb Superior Court. Before Judge Manning. November 12, 1958.
Edwards, Bentley, Awtrey Bartlett, for plaintiff in error.
Ben F. Smith, contra.
1. The petition as amended, seeking damages for an abatable continuing nuisance accruing within four years of its filing, is not subject to general demurrer on the ground that suit is barred by the statute of limitations.
2. A suit for damages alleged to have accrued within the statute of limitations will not be dismissed as a whole, although it may seek to recover for some damages as to which action is barred.
3. The notice attached to the petition is in substantial compliance with Code § 69-308 and was given within the period of limitation.
4. In the absence of any exception to the failure of the court to pass on the several special demurrers of the defendant, the grounds thereof will not be considered.
DECIDED APRIL 8, 1959.
Mrs. Annie Lee McLain and Harold McLain filed an action for damages on November 8, 1957, against the City of Acworth in Cobb Superior Court. The petition as amended alleged that the plaintiffs are the owners of certain real property in Cobb County, Georgia, which was suitable and desirable for residential purposes prior to the acts complained of; that on November 22, 1950, the City of Acworth commenced to operate a sewerage disposal plant near plaintiffs' property; "said sewerage disposal plant was never covered and that refuse and dead dogs were allowed by said city to fall into said sewerage disposal plant causing odors of such foul nature that the value of said property for residential purposes was destroyed"; that said city "has continued to operate said sewerage disposal plant and the health and happiness of the residents in the immediate area in which your plaintiffs' property is located has been seriously damaged and that failure of the city to properly erect and operate said sewerage disposal plant has allowed the same to become stagnant and polluted, sending forth such noxious odors and vapors and so impregnating the air as to completely destroy the value of the property for residential purposes." It is further alleged that the operation of the sewerage disposal plant as aforesaid is a continuing nuisance which could be abated but "continues at this time unabated".
The petition also alleges that on August 6, 1957, the plaintiffs "gave written notice to the City of Acworth under the provisions of Code [Ann.] § 69-308 of the Code of Georgia; and that since said date the city has failed, refused, and declined to abate the nuisance herein complained of." A copy of the alleged notice is attached to and made a part of the petition.
The original petition prays for damages for diminution of property value in the amount of $14,425. By amendment it is alleged "that the sum of $6,000 of the damages herein complained of has occurred within the last four years from the date of filing of the original petition" and "that said sum of $6,000 is included in the amount sued for in said petition."
General and special demurrers were filed on behalf of the defendant city. Among other things, it is stated that the defendant "generally demurs to plaintiff's petition and shows that by the allegations in said petition, any cause of action which might have accrued is shown to have accrued more than four years next previous to the filing of this action, and that the same is barred by the statute of limitation." The general demurrers were overruled but the special demurrers were not ruled upon. The defendant excepts to the overruling of its general demurrers.
The defendant city insists that its general demurrers should have been sustained since the petition shows on its face that the suit is barred by the statute of limitations. This issue is properly raised by the general demurrer which expressly sets out a reliance on the statute. Smith v. Central of Ga. Ry. Co., 146 Ga. 59 ( 90 S.E. 474). The petition, however, does not seek damages resulting from the creation of a nuisance treated as permanent, as in City of LaFayette v. Hegwood, 52 Ga. App. 168 ( 182 S.E. 860), cited by defendant, but rather seeks damages for an abatable continuing nuisance. In a suit for the maintenance of such a nuisance, all legitimate damages are recoverable which accrue within the period of limitation prescribed by statute before the institution of the suit. Gabbett v. City of Atlanta, 137 Ga. 180, 183 ( 73 S.E. 372).
The amendment to the petition alleges that $6,000 of the $14,425.00 total damages prayed for "occurred within the last four years from the date of the filing of the original petition." A suit for damages alleged to have accrued within the statute of limitations will not be dismissed as a whole, although it may seek to recover for some damages as to which suit is barred. Atlantic Coast Line R. Co. v. Knapp, 139 Ga. 422 (3) ( 77 S.E. 568); Gabbett v. City of Atlanta, supra. A general demurrer does not reach the failure to allege the proper measure of damages. Daniell v. McGuire, 87 Ga. App. 491 ( 74 S.E.2d 378).
The defendant also contends that the written notice allegedly given to it under the provisions of Code (Ann.) § 69-308 is ineffective since "plaintiffs failed to give defendant any notice whatsoever in compliance with said section, until after the action was barred by the statute of limitations." In view of the above rulings, this contention is without merit. The petition affirmatively alleges compliance with the statute, and the attached notice describes the time, place, and extent of the alleged injury with reasonable certainty. A substantial compliance with the Code section is all that is required. Langley v. City Council of Augusta, 118 Ga. 590, 601 ( 45 S.E. 486, 98 Am. St. Rep. 133). The petition is not subject to general demurrer in this regard.
In the absence of any exception to the failure of the court to pass upon the several special demurrers, the grounds thereof will not be considered. Shingler v. Shingler, 184 Ga. 671 (1) ( 192 S.E. 824).
The court did not err in overruling the general demurrers to the petition.
Judgment affirmed. Quillian and Nichols, JJ., concur.