ARGUED MARCH 15, 1955.
DECIDED APRIL 11, 1955.
Injunction. Before Judge Hendrix. Fulton Superior Court. December 14, 1954.
Cohen, Roberts Kohler, for plaintiff in error.
Barrett Hayes, contra.
The petition in the present case stated a cause of action for injunctive relief against the maintenance of a continuing nuisance, and the trial judge erred in sustaining the general demurrer to the petition. Rinzler v. Folsom, 209 Ga. 549 ( 74 S.E.2d 661), and cases cited; Levin v. Myers, 211 Ga. 474 ( 86 S.E.2d 283).
Judgment reversed. All the Justices concur.
ARGUED MARCH 15, 1955 — DECIDED APRIL 11, 1955.
Joseph Rinzler brought a petition against Arthur C. Akin, in which he alleged: The defendant is doing irreparable damage through a continuing nuisance. The petitioner is the owner of a described tract of land, and the defendant is the owner of a described tract which adjoins the land of the petitioner. The defendant has constructed a wall along a portion of the dividing line between these two properties, which constitutes a continuing nuisance to the petitioner for the following reasons: The wall was constructed with insufficient footings and has fallen into the driveway of the petitioner three times, and is likely to fall again at any time. The wall has a great number of drains built through it, and whenever it rains, water from the defendant's property drains through the wall in large quantities onto the petitioner's driveway, covering it with water and mud, and flooding the basements of the apartments on the property. The defendant has filled the side of the wall on the defendant's property with dirt so that the yard on the defendant's side of the wall slopes to the wall and all the water which falls on this yard drains over the wall onto the petitioner's driveway, depositing large quantities of dirt and debris on the petitioner's property and flooding the basements of the apartments located on the petitioner's property. The wall has sagged so that approximately one-half of the wall is now six inches over the line between the petitioner and the defendant on the property of the petitioner. Prior to the construction of the wall, the water which fell on the defendant's property drained to the rear of his property and did not drain on the petitioner's property; and the defendant has, by earth fills and the wall, diverted this water onto the petitioner's property. The tenants in the petitioner's apartments are threatening to vacate the apartments because of the water and dirt flowing into the basements of their apartments. The defendant's actions in making the earth fills and constructing the wall have damaged the petitioner in the sum of $5,000. The defendant [petitioner?] has no adequate remedy at law. The fill and wall constitute a continuing nuisance.
The prayers were for a rule nisi; that the defendant be permanently enjoined from maintaining the nuisance; that the petitioner recover from the defendant $5,000 as damages caused by the nuisance; for process; and for other and further relief.
The defendant filed general and special demurrers. The general demurrer was sustained, and the petition dismissed. The exception is to this judgment.