Opinion
20273.
SUBMITTED NOVEMBER 10, 1958.
DECIDED JANUARY 12, 1959.
Injunction. DeKalb Superior Court. Before Judge Vaughn. September 24, 1958.
Weldon Shows, for plaintiff in error.
Roland Neeson, contra.
The allegations of the petition describing the property of the plaintiff are too vague and indefinite to form the basis of an action for trespass, and it was error to overrule the general demurrer to the petition.
SUBMITTED NOVEMBER 10, 1958 — DECIDED JANUARY 12, 1959.
R. L. Cauble filed a petition against K. G. Weimer to enjoin an alleged trespass and to recover damages. In substance his petition alleged: The defendant is the owner of described property and subject to the jurisdiction of the court. The defendant is in the process of building houses and streets on the described property, and is engaged in the development of a subdivision. The construction work on the "real property resulted and will result in a change by defendant in the natural and normal flow of water, so that same now pours on, over and across" property owned by the plaintiff. The plaintiff "is the owner of valuable real property lying immediately southeasterly of, adjoining, and adjacent to" the described real property owned by the defendant. The defendant foreclosed a deed to secure debt of Peace Company, Inc., on or about the first Tuesday in May, 1958, and purchased the property at public sale. He had full and complete knowledge that the improvements contemplated "would change the natural flow of the water on, over, and across said real property to the irreparable harm and damage to plaintiff." On or about March 10, 1958, the defendant was advised by the plaintiff's attorney that the concentrated flow of water was damaging, and had damaged the plaintiff's property, and that the plaintiff had instituted an action against Peace Company, Inc., seeking to recover damages and to correct the injury. At that time the defendant stated to the plaintiff's attorney that he intended to foreclose the deed, but that he did not intend and would not take any steps, to correct, remedy, or relieve the flow of water on and across the plaintiff's real property. The acts of the defendant constitute a continuing nuisance and trespass, and the defendant should be enjoined and restrained from continuing to maintain it. The plaintiff has not authorized, acquiesced in, consented to, or ratified, the acts of the defendant or the defendant's predecessor in title, Peace Company, Inc. The acts of the defendant have damaged the plaintiff in a stated amount, and the trespass being committed wilfully and in bad faith by the defendant, the plaintiff is entitled to recover punitive damages and attorney's fees. The plaintiff has no adequate remedy at law.
The prayers were: for process; that the defendant be enjoined and restrained from continuing to maintain the nuisance and trespass, and from further altering the normal flow of water on, over, and across the property of the defendant, whereby it is concentrated and flows upon the plaintiff's property; for damages; and for other relief.
On July 17, 1958, the judge of the superior court overruled the general demurrers of the defendant, and denied an interlocutory injunction. On July 28, the plaintiff filed a motion to vacate and set aside the order of July 17, and on September 24, an order was passed by the judge granting the motion to vacate and set aside. In this order the general demurrers were again overruled, and the defendant was enjoined "from permitting or allowing waters to flow onto and over the lands of the plaintiff . . . from the lands of defendant . . . in greater volume and quantity than that which naturally flowed onto and over said land of plaintiff immediately prior to and at the time defendant erected on his lands certain dwellings" and made other changes on his property.
The defendant excepts to the order overruling his general demurrers and to the grant of an interlocutory injunction.
Where two city lots adjoin, the lower owes a servitude to the higher to receive the water which naturally flows upon it, provided the owner of the higher lot has done no act to increase such flow. Goldsmith v. Elsas, May Co., 53 Ga. 186. The owner of the higher lot, however, would have no right to concentrate and collect surface water by the erection of buildings and cause it to be discharged upon the lower lot in a greater quantity or in a different manner from that in which the water would have flowed upon it by the law of gravitation. Hendrix v. McEachern, 164 Ga. 457, 459 ( 139 S.E. 9); Cox v. Martin, 207 Ga. 442 ( 62 S.E.2d 164).
Notice to the alienee of property causing a nuisance or trespass that he will be held responsible for damages subsequently caused by it is tantamount to a request to abate the nuisance or trespass. Central of Ga. Ry. Co. v. Americus Construction Co., 133 Ga. 392, 393 (2) ( 65 S.E. 855). "General damages are such as the law presumes to flow from any tortious act, and may be recovered without proof of any amount." Code § 105-2006. "The law infers some damage from the invasion of a property right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms `nominal damages'." Williams v. Harris, 207 Ga. 576 (2) ( 63 S.E.2d 386).
Under the foregoing rules, in so far as the general demurrers sought to attack the petition for want of notice and demand to abate the nuisance, or because the damages alleged were not specifically described, the demurrers were properly overruled.
An allegation that a party is the owner of described real estate is an allegation of an ultimate fact and is not a conclusion of law. Foster v. Rowland, 194 Ga. 845 (4) ( 22 S.E.2d 777). In the present case, however, there is no description of the plaintiff's property, nor are there any descriptive averments which might afford a key to a description of his lands. The allegation that the plaintiff "is the owner of valuable real property lying immediately southeasterly of, adjoining and adjacent to," described property of the defendant, "is too vague and indefinite to be the basis of an action to enjoin an alleged trespass upon the land, and the question of such defective description may be raised by general demurrer." Hamilton v. Evans, 208 Ga. 780 (4) ( 69 S.E.2d 739), and cases cited.
There being no adequate description of the plaintiff's property to sustain an action for trespass, the court erred in overruling the general demurrers.
It is suggested by counsel for the plaintiff that, if this court should find the petition insufficient for any reason, it should grant the right of amendment. The right of amendment is controlled by law. Where a general demurrer is overruled in the trial court, and the judgment is reversed by this court, an amendment may be allowed before the remittitur is made the judgment of the trial court. Whiddon v. Southern Auto Finance Co., 188 Ga. 340 ( 3 S.E.2d 889); Milton v. Milton, 195 Ga. 130, 131 ( 23 S.E.2d 411).
Judgment reversed. All the Justices concur.