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Action for damages. Whitfield Superior Court. Before Judge Pope.
1. Where a municipality assumes the control and management of a sewer or drain which has been constructed in a public street, it is bound to use reasonable diligence and care in its operation, maintenance and repair, and in keeping it clear and free of obstruction so as to prevent injury or damage to others, Langley v. City Council of Augusta, 118 Ga. 590 (45 SE 486, 98 ASR 133); and, where the municipality is in control of the sewer the municipality alone has the power to abate the nuisance, Smith v. City of Atlanta, 75 Ga. 110 (2); and, although the drainage or sewerage may be sufficient at one time, yet, where by reason or change of conditions, such as increased use, Candler v. Hunnicutt, 35 Ga. App. 120 (1) (132 SE 140), City of Macon v. Douglas, 45 Ga. App. 798 (1) (165 SE 922), Massengale v. City of Atlanta, 113 Ga. 966 (1) (39 SE 578), City of Macon v. Cannon, 89 Ga. App. 484 (1) (79 SE2d 816), or, because of a defect at a particular place, City of Atlanta v. Warnock, 91 Ga. 210 (1) (18 SE 135, 23 ALR 301, 44 ASR 17), it becomes inadequate, a duty to correct such situation devolves upon the municipality.
Harrell v. Burch, 195 Ga. 96, 98 (23 SE2d 434)." Hulsey v. Interstate Life &c. Co., 207 Ga. 167, 169 (60 SE2d 353).
3. Construing the petition in the present case in accordance with the above rulings and principles, where the petition alleges that the defendant business corporation was connected to the sewerage system of a municipality, with the permission of the municipality, which system was adequate at the time but became inadequate when there was "an excessive" increase in sewage emptying into the system by the defendant, as the sewage ran through an 8-inch pipe into a manhole which had only a 6-inch pipe for an outlet, thus overloading the 6-inch pipe to which plaintiff's home system was connected and backing up into plaintiff's home system and overflowing into the basement causing damage to the house and furnishings, and where the petition also alleges that the condition complained of could be remedied in three ways, all of which involved a discontinuance of the use of the municipal sewerage system by the defendant, an inference is authorized that the reduction or decrease in the amount of sewage emptied into the municipal system by the defendant would not remedy the situation, and that the condition complained of by the plaintiff is not caused by "excessive" amounts of sewage emptied into the system by the defendant; but rather by the defect in the construction of the sewer. The petition so disclosing, there is no liability on the part of the defendant. It follows that the trial court erred in overruling the general demurrer to the petition.
4. There being no duty on the defendant to discontinue using the municipal sewerage system, the special demurrers to that portion of the petition alleging that the defendant was committing a wilful and wanton injury by reason of its failure to so discontinue were subject to the special demurrers presented and the trial court erred in overruling the same.
5. The petition disclosing that the house of the plaintiff was in a named town, in a named state and on a named street with a specified house number alleged a sufficient description to furnish a key to the identification of the property involved, Price v. Gross, 148 Ga. 137 (2) (96 SE 4), Hollomon v. Board of Ed. of Stewart County, 168 Ga. 359 (147 SE 882), and was, therefore, sufficient to withstand a general demurrer insofar as the description is concerned. The cases relied upon by the defendant, Hamilton v. Evans, 208 Ga. 780 (4) (69 SE2d 739), and Weimer v. Cauble, 214 Ga. 634 (106 SE2d 781) are not in conflict with the above holding.
6. The question not being properly raised in the court below by special demurrer, no question is presented in this court as to whether the cost of repair of plaintiff's home is a correct measure of damages. As to this type of damage, see Edelson v. Hendon, 77 Ga. App. 395 (48 SE2d 705).
7. Nothing said in this opinion shall be construed as holding that the municipality involved here is liable in a suit for damages brought by plaintiff herein.
8. The judgment is reversed for the error of the trial judge in overruling the general demurrer for the reasons given in Division 3 of this opinion, and in overruling the special demurrers referred to in headnote 4. All grounds of special demurrer not herein specifically dealt with were without merit, and the trial court did not err in overruling them.
C. H. Dalton, contra.
Pittman & Kinney, L. Hugh Kemp, for plaintiff in error.
Friday May 22 21:36 EDT

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