Opinion
39198, 39199.
DECIDED JANUARY 15, 1962. REHEARING DENIED JANUARY 25, 1962.
Action for damages. Tift Superior Court. Before Judge Gray.
Eugene Cook, Attorney-General, Carter Goode, E. J. Summerour, Assistant Attorneys-General, Maxwell Hines, for plaintiff in error.
Seymour S. Owens, Robert R. Forrester, contra.
1. Under the facts alleged in the petitions, the plaintiffs stated a cause of action for damages to their real property by the defendant's acts of interference with the natural flow of water, which caused water to be diverted and to pond upon their property. The deeds granting the right of way did not give the defendant the right to invade and damage plaintiffs' property.
2. The allegations in the amended petitions that the deeds were procured by fraud should have been stricken upon demurrer.
DECIDED JANUARY 15, 1962 — REHEARING DENIED JANUARY 25, 1962.
The plaintiff in error states that these are companion cases, the same issues being involved in both cases, and controlled by the same legal principles. Both plaintiffs brought suit against the defendant claiming damage to their property by reason of the construction of a State highway. In both suits it was alleged that the highway was so constructed that rainwater drained upon the property of the plaintiffs, ponding there, and in the Goodman case that by reason of the construction of culverts the natural flow of the water had been changed, causing all water north of a designated road and east of the highway by-pass to pour upon his lands, washing and inundating them, creating a pond 120 feet long, 76.5 feet wide, and 17 inches deep, which is located about 15 feet south of the north boundary of the petitioner's lands and in close proximity to petitioner's residence. In the Moses case, similar charges were made in that the construction changed the natural flow of the water; that the construction of a water trap caused emptying of the water from the roadbed of the highway by means of an underground culvert directly upon the land of the plaintiff; and that during rains large amounts of water, dirt, gravel, rock, and debris flow down the embankments on the north and east boundary lines of plaintiff's property directly onto plaintiff's property, and this water, together with water flowing through the culvert, floods the plaintiff's property, ponding and stagnating upon it. The petitions allege damages to the respective properties, seeking judgment therefor.
In both cases the defendant alleged in its answers that the plaintiffs had conveyed to the defendant the property on which the highway was constructed, at the point where it abutted on the property claimed to be damaged, by warranty deed. The deed in the Goodman case, eliminating the description of the property and irrelevant paragraphs, reads as follows:
"State Highway Department of Georgia Right of Way Deed (Limited Access)
"Georgia Tift County Project No. IN 401-1 (1) "This conveyance made and executed the 8 day of March, 1956 witnesseth that Samuel Johnson Goodman, the undersigned, is the owner of a tract of land in Tift County through which the Adel to Ashburn Road known as Project No. IN 401-1 (1) has been laid out by the State Highway Department of Georgia as a Limited Access Highway being more particularly described in a map and drawing of said road in the office of the State Highway Department of Georgia, Atlanta, Georgia, to which reference is hereby made."Now therefore, in consideration of the benefit to said property by the construction and maintenance of said road, and in consideration of one dollar ($1.00) in hand paid, the receipt whereof is hereby acknowledged, I do hereby grant, sell and convey to said State Highway Department of Georgia, and their successors in office so much land as to make a right of way for said road as surveyed being more particularly described as follows: . . .
"For the same consideration I hereby convey and relinquish to the State Highway Department of Georgia all rights of access between the Limited Access Highway and approaches thereto on the above numbered Highway and all of the remaining real property of the undersigned except at such points as designated by the State Highway Department of Georgia. Said right of way hereby conveyed consisting of 2.566 acres, more or less, is shown in color on the plat of the property prepared by the State Highway Department of Georgia, dated December 1, 1955 attached hereto and made a part of this description. To have and to hold the said conveyed premises in fee simple. . . ."
The deed in the Moses case contained identical recitals.
In response to the answers of the defendant, each plaintiff amended his petition so as to allege the execution of the deeds; to charge in each instance that they were procured by false or fraudulent statements, or statements made knowingly or recklessly in disregard of the truth, which deceived the plaintiffs into their execution; and that being thus procured they in effect were not bound by the provisions of the deeds.
The defendant interposed general and special demurrers to the petition as amended, and demurred to and moved to strike certain portions of the amendments. The trial judge overruled the general demurrers of the defendant and overruled the demurrers to portions of the amendments. It is upon this judgment that error is assigned.
1. It is the defendant's contention that these cases are controlled by the decision of the Supreme Court in Darnall v. Georgia Ry. c. Co., 134 Ga. 656 ( 68 S.E. 584). There the plaintiff brought an action on an alleged injury and damage to real estate owned by her allegedly caused by the constructing of an additional line of track upon the defendant company's right of way which bounded the plaintiff's lot. The petition alleged that in order to construct this additional line of track the defendant made an excavation of land 10 to 15 feet wide, and lowered the grade of both the old and new track so that the bed of the railway was about 10 feet below the surface of the petitioner's lot, and that the company also lowered the grade of the Decatur and Atlanta Road adjacent to the petitioner's lot, and that the petitioner's house and lot were thus left at an elevation of 10 feet; that petitioner's property was rendered more difficult of access; that its value had been decreased; and that, in order to protect her land from washing, she would have to construct retaining walls of brick or stone. At the trial the jury returned a verdict for the defendant. On appeal, the Supreme Court held that there was no evidence whatever that the lateral support to the plaintiff's land had been in any way interfered with or that a retaining wall was necessary to support her land after the cut made by the railway company had been completed; that the railway company had the right to construct a line of railway over the strip of land conveyed to it by the defendant's predecessor in title; and that, in constructing the right of way, the company had the right to make such excavations as were necessary in properly grading the same, and to use all or any part of the right of way for that purpose so long as there was no physical invasion or injury to plaintiff's property.
It is at once apparent that the Darnall case does not control the actions here, since the holding there was that the defendant had the right to act as it did only because there was no physical invasion or injury to the plaintiff's property.
The petitions in the present cases charge physical invasions of the realty by the casting of water upon the properties through interference with the natural flow. This interference and the consequent physical invasions were caused by the defendant's elevation of the highway and the construction of the culverts and the water trap. In numerous cases decided by the Supreme Court and this court, it has been held that there is liability for damage resulting from interference with the natural flow of water which causes injury to the complainant. Barfield v. Macon County, 109 Ga. 386 ( 34 S.E. 596); Whipple v. County of Houston, 214 Ga. 532 ( 105 S.E.2d 898); and Felton Farm Co. v. Macon County, 49 Ga. App. 239 ( 175 S.E. 29).
In McArthur v. State Highway Dept., 85 Ga. App. 500 ( 69 S.E.2d 781), this court held that there are only two elements of damage to be considered in a condemnation proceeding: first, the market value of the property actually taken; and, second, the consequential damage that will naturally and proximately arise to the remainder of the owner's property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned; and that the consequential damages to the remainder of the property caused by negligent or improper construction of the improvement are not proper for consideration in a condemnation proceeding, but are the subject of a separate suit for damages.
We do not accord any merit to the contention advanced by the plaintiff in error to the effect that the mere reference in the deeds to the maps and drawings on file in the office of the State Highway Department of Georgia, in Atlanta, was sufficient to put the grantors on notice that water might be diverted so as to pond upon their property.
In the absence of express agreements relieving the Highway Department of all consequential damages caused by the physical invasion of property abutting on a highway, it would be placing an undue burden upon the grantors of rights of way to require them to comprehend complicated plans drawn by highway engineers and to anticipate and waive at the time of the delivery of the right of way deeds all consequential damages which might accrue to their property through the construction of the roadway according to the plans and specifications which might be on file in the Atlanta office of the Highway Department. Even conceding that the maps and drawings referred to show the grades and elevations of the road after its completion, the mere references to them in the right of way deed do not bind the grantors to the degree that they be held in law to have had actual knowledge of the future ponding of water upon their property and thus to preclude them from suing for those consequential damages at a later date. If this were otherwise, the reference would also bind the grantee which could not thereafter change in any way its plans for the particular highway without first securing the consent of the grantors and would surely impede efficient highway construction where changes in design, grade, or other plans were found to be necessary. Thus construed, the petitions stated causes of action. The general demurrers were properly overruled.
2. Plaintiffs amended their petitions by adding allegations that the deeds from the plaintiffs to the defendant were procured by false representations of a representative of the State Highway Department. The defendant demurred to these amendments on the ground that they were not germane, material, or relevant.
We have held here that the deeds did not confer upon the defendant the right to damage the properties as the petitions allege they were damaged. This holding, coupled with the fact that these actions are ones seeking damages by reason of the alleged invasion of the plaintiffs' lands, compels the conclusion that all allegations in the petitions asserting fraud in the procurement of the deeds were immaterial and were not germane or relevant. Accordingly, the trial court erred in overruling the defendant's demurrers and motion to strike paragraphs 22 through 26 of the petition as amended in the Goodman case, and the demurrer and motion to strike paragraphs 19, 20, 21, 23 and 24 in the Moses case. The defendant's demurrer to paragraph 22 in the Moses case was withdrawn.
The other demurrers of the defendant were not argued and are deemed abandoned.
Judgment affirmed in part and reversed in part. Felton, C. J., and Hall, J., concur.