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Action for damages. DeKalb Civil and Criminal Court. Before Judge Morgan.
NICHOLS, Presiding Judge, 1.
The evidence authorized the verdict and the trial court did not err in charging the jury on issues raised by the pleadings and evidence.
Mary B. Jordan sued Guy W. Rutland Sr. to recover for damages allegedly sustained because of construction of a dam by the defendant on land adjacent to land owned by the plaintiff. On the trial of the case it was stipulated that the defendant completed the dam on his property in 1960 and that such dam was the dam involved in the case. The plaintiff introduced evidence to authorize a finding that the construction of the dam on the defendant's property caused a part of the plaintiff's property to become "swampy" or "marshy." There was evidence as to the value of such land without such condition (the condition before the construction of the dam by the defendant), and the value of such land with the swamp or marsh (the condition after the construction of such dam), as to the amount expended by the plaintiff in an effort to correct the condition caused by the construction of such dam, as well as evidence that the dam was negligently constructed. At the conclusion of the oral testimony the jury viewed the property in question. The jury returned a verdict for the plaintiff and thereafter the trial court overruled the defendant's amended motion for new trial and it is on such judgment adverse to him that the defendant now assigns error.
In support of the general grounds of the defendant's motion for new trial it is contended that the amount of the verdict was not authorized, "The jury, having viewed the premises by consent of the parties, were in a better position to form an opinion as to the damages alleged than is this court from the reported evidence alone. City of Atlanta v. Milam, 95 Ga. 135, 137 (22 SE 43)." Rogers v. Western & Atlantic Railroad, 209 Ga. 450 (4) (74 SE2d 87). The verdict for the plaintiff was otherwise authorized by the evidence and the trial court did not err in overruling the usual general grounds of the defendant's motion for new trial.
2. The plaintiff's petition alleged that the damages to the property were caused by the negligent construction of a dam on the defendant's property and "that surface waters began percolating onto her land as a result of the subterranean waters forced under the dam of the defendant by the pressure of the impounded waters which has rendered large areas of her property a bog and a marsh, rendering them completely unfit for any use." The charge of the trial court complained of in special ground 4 of the motion for new trial is as follows: "If you find for the plaintiff in this case, then you will direct yourself to the question of damages. And if you find for the plaintiff in this case, then the plaintiff would be entitled to recover the diminution in the market value of her property occasioned by the diverting of the watercourse by the defendant in this case, if you so find." This charge is in accordance with the rule that the measure of damages in such case is the difference in the market value of the plaintiff's property before and after the tort which occasioned the injury. See Hale v. Glenn, 108 Ga. App. 579, 580 (134 SE2d 60). No error is shown by the excerpt from the charge complained of.
3. " 'It is the duty of the court to give in charge to the jury the law applicable to the issues made by the pleadings and the evidence, and a failure to do so, when injurious and harmful to the losing party, is reversible error. Aubrey v. Johnson, 45 Ga. App. 663 (2 b, c) (165 SE 846); Pryor v. Coggin, 17 Ga. 444.' Camilla Cotton Oil Co. v. Crawley, 52 Ga. App. 268, 271 (183 SE 134)." American Fire &c. Co. v. Grizzle, 108 Ga. App. 496, 497 (133 SE2d 400). Accordingly, the trial court did not err in charging, as complained of in special grounds 5 and 6 of the amended motion for new trial, on allegations of the plaintiff's petition supported by the evidence. The judgment overruling the defendant's amended motion for new trial was not error for any reason assigned.
Peek, Carr, Whaley & Blackburn, Benjamin B. Blackburn, III, contra.
McCurdy, Candler & Harris, Claude E. Hambrick, for plaintiff in error.
Friday May 22 21:12 EDT

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