Watkins v. Pepperton Cotton Mills

Gilbert, J. The first five headnotes do not require elaboration. Movant specifies as error and ground for a new trial the following charge of the court: “I charge you, on the subject of prescriptive easement, that if you believe from the preponderance of evidence in the case that the defendant located and constructed this sewer complained of, with the knowledge and consent of Joel B. Watkins, owner of the land, and that he was a stockholder, director, and officer of the defendant company at the time, and that this sewer has emptied its contents into the stream flowing into the waters of the pond described, and that the use of said sewer has been actual, continuous, exclusive, and uninterrupted and in the right of the defendant and did not originate in fraud,' and is substantially now being used as it was originally constructed, for a period of twenty years, that a prescriptive right, that is, right to use this sewer for the purpose of emptying these waters into this tributary or branch, has thereby ripened into the defendant company, to the continual use of the sewer against the rights of the plaintiff, and for which she would not be entitled to the relief prayed for or any part of the damages sought to be recovered.” There are a number of criticisms of this charge. In other words, movant contend that it is erroneous for a number of reasons. Most of these are so clearly without merit that we deem it only necessary to say that they do not show error. As we view it, the chief criticism is the contention on the part of the movant that the charge is erroneous for the reason that the court should not have instructed the jury that the right to operate and maintain a nuisance could be acquired by prescription. Movant contends such a right under the facts of this case can not be acquired by prescription. Nuisances are divided into two main divisions, usually denominated as public and private nuisances. An illustration of a public nuisance is the unauthorized placing of an obstacle across a public highway. Prescription has no application to a nuisance of this character, for the reason that one can not prescribe against the public. The unauthorized building of a fence across one’s cultivated field would constitute a private nuisance; and so would the [375] pollution of a lake used by private owners who charge a fee to the public for the privilege of swimming and bathing therein. The right to maintain a private nuisance may be acquired by prescription. This is especially true in this case where the nuisance is in the nature of an easement. In Bonner v. Wellborn, 7 Ga. 296, Judge Lumpkin, in expressing his individual opinion, made no distinction between public and private nuisances and expressed the view that prescription would not apply in favor of a nuisance. Judges Warner and Nisbet also wrote opinions in that case, neither of whom mentioned the question of prescription. In fact the case did not in' any view involve the question of prescription. The nuisance in that case was created in 1843, the suit was filed in 1846; so that it is obvious that the views expressed by Judge Lumpkin were obiter. They only purported to be the individual views of that judge, and do not in any sense constitute a ruling of the court in the case. Moreover, the judgment was concurred in by Judges Nisbet and Lumpkin, while Judge Warner dissented. In Williams v. Southern Railway Co., 140 Ga. 717 (79 S. E. 850), the individual expression of Judge Lumpkin as to prescription was quoted, but it was distinctly stated that no easement was involved. In Phinizy v. City Council of Augusta, 47 Ga. 260, 268, Judge McCay expressed the compelling reason for distinguishing between a public and a private nuisance on the question of prescription. He said: “The rule that the statute of limitations does not run in favor of a nuisance only applies to public nuisances, and grows out of the impropriety of imputing laches to the public: 7 East, 195; 4 Burrows, 2163; 4 Mass. 522; 42 Maine, 150. On the other hand, it is laid down in Angelí on Watercourses, as a general rule, that the special right to a use of a watercourse, or to flow water upon the land of another, may in all cases be acquired by prescription: Angelí on Watercourses, § 200. And he says again, § 206, ‘We are aware of no authority, English or American, which gainsays the doctrine that the upper proprietor of land may, by use for a sufficient period of time, acquire a right to keep open an ancient agricultural drain or ditch through land below, for the purpose of draining his own premises.’ One can acquire the right to the land itself by use and possession, and it would be strange if one could not acquire by the same method a mere easement over it. And the books are full of cases acknowledging the right: 1 B. & P. 400; [376] 3 East, 294; 11 East, 371; 6 East, 208; 1 Camp. 263; 2 Brod. & Bing. 667; 1 Sim. & Stuart, 203; 3 B. & A. 76.” In Monroe v. Estes, 139 Ga. 729 (78 S. E. 130), and Terrell v. Terrell, 144 Ga. 32 (85 S. E. 1005), this court by unanimous decision recognized the principle that prescription did apply in the case of private nuisances. In the latter case the court said: “It is settled doctrine in this State that the owner of a mill-dam who maintains the same at a given height for a period of twenty years, which dam during that period causes water to back and overflow land of another, may obtain a prescriptive easement of flowage over the lands of the upper riparian owner.” Columbus Power Co. v. City Mills Co., 114 Ga. 558 (40 S. E. 800); Monroe v. Estes, 139 Ga. 729 (78 S. E. 130); 40 Cyc. 676. We think, therefore, without indulging in more elaboration, that the court did not err in refusing a new trial. Judgment affirmed. All the Justices concur.