Lorenz v. DeKalb County

102 Ga. App. 9 (1960)

115 S.E.2d 487

LORENZ v. DEKALB COUNTY.

38291.

Court of Appeals of Georgia.

Decided June 29, 1960.

*10 Zachary & Hunter, W. E. Zachary, for plaintiff in error.

George P. Dillard, W. Dan Greer, contra.

GARDNER, Presiding Judge.

Paul Raymond Lorenz filed a suit against certain named members of the Board of Education of DeKalb County, Cleve E. Bradley and Rex E. Coger, a partnership, and against DeKalb County. This was a suit for damages to realty and application for a permanent injunction. To the petition the defendant DeKalb County filed general and special demurrers and a plea and answer. The trial court sustained the general demurrers and dismissed DeKalb County as a party defendant. It is to this order that the case is here for review. The petition alleges substantially that the plaintiff owned a lot adjacent to the lot on which the defendant erected a school plant. It is alleged that the erection of the school plant damaged the plaintiff's adjacent property, which was his home. It is alleged also that the defendant, in erecting the plant, built up the land approximately twenty feet and caused the water from that property to drain on the plaintiff's property; that before the school plant was built the plaintiff's property was worth $15,500 and that afterwards it was worth only $14,000. The suit is brought for the difference.

The record shows that the work on the school plant began in 1954 and that the water has continued to overflow on the plaintiff's property at intervals since that time and that the most recent flooding was in 1958. Demurrers were filed to the plaintiff's petition, which demurrers were sustained by the trial court, and the petition was dismissed. The dismissal was based on the ground that the plaintiff's cause of action was barred by the statute of limitation. The allegations of the petition show clearly that the claim was not filed within the statutory time. On this question Code § 23-1602 provides: "All claims against counties must be presented within 12 months after they accrue or become payable, or the same are barred . . ." See also Floyd County v. Fincher, 169 Ga. 460 (150 S. E. 577) and Bibb County v. Greene, 42 Ga. App. 552. (156 S. E. 745).

The court did not err in sustaining the demurrers and dismissing the petition. The action was barred by the statute of limitation.

Judgment affirmed. Townsend, Carlisle, and Frankum, JJ., concur.