Felker v. Calhoun

Jackson, Justice. This suit was brought for backing water on Felker’s land by him against Chase and Calhoun, and the verdict was for-both defendants. Whereupon a motion was made by plaintiff for a new trial, which was granted as to Chase, but refused as to Calhoun, and thereupon Felker excepted to the judgment refusing a new trial as to Calhoun. Chase was the lessee of Calhoun, and the latter guaranteed to the former the right to keep the water at a certain height, which the presiding judge thought that the evidence-was sufficient to show the jury did not raise the water beyond the height it had attained when he, the defendant Calhoun, bought the mill and water-power ; though Chase, the lessee, had tightened the dam, and thereby raised the water higher. No request to abate the nuisance, or, in other words, to lower the dam, had been made to Calhoun, the alienee of the grantor from whom he bought, and, therefore, the court refused a new trial as to him, under section 3001 of the Code. That section, in part, is in these words:: * * * “The alienee of the property causing the nuisance is responsible for a continuance of the same. In the latter case [that is, where the alienee is sued] there must be a. request to abate before action is brought.” To the same point is the case of Bonner vs. Wellborn, 7 Ga., 296, and that was an action for overflowing land. So the court was right to refuse the new trial as to Calhoun-on this ground; and as there is no pretense that any request to abate the nuisance was ever given to him, this point will, conclude' this case so far as he is concerned, and he only is-concerned in this bill of exceptions which the plaintiff' brings here. It is Unnecessary, therefore,- to consider the. [516] ■other grounds of the motion, especially as the ruling of the court is put on this, and none other was ruled by the judge. Judgment affirmed.