Damages for a continuing trespass are limited to those which have occurred before an action is commenced. Subsequent damages flowing from a continuation of the trespass give a new cause of action.
(Civil Code 1895, § 3884; Civil Code 1910, § 4480; Code 1933, § 105-1406.)
Law reviews.- For article, "Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones," see 33 Georgia St. U.L. Rev. 359 (2017).
JUDICIAL DECISIONS
Section not applicable in ejectment action.
- O.C.G.A. § 51-9-6 did not apply to limit damages in an ejectment action by a landowner against an outdoor sign company. Outdoor Sys. v. Woodson, 221 Ga. App. 901, 473 S.E.2d 204 (1996).
Intent of this section is that in suit for continuing trespass the plaintiff cannot recover damages arising after suit is filed, except as a "new cause of action," to be declared upon in a new and different suit. Savannah Elec. & Power Co. v. Horton, 44 Ga. App. 578, 162 S.E. 299 (1932).
Plaintiff's election.
- The plaintiff, at the plaintiff's election, may sue for any damages which have resulted from a continuous trespass within the statute of limitations, before the entire injury is done. Other damages might be made the basis of a new action. Becker v. Donalson, 133 Ga. 864, 67 S.E. 92 (1910).
When all damages claimed resulted from continuing trespass committed, declaration was not subject to special demurrers (now motions to dismiss). Gloss v. Jacobs, 86 Ga. App. 161, 71 S.E.2d 253 (1952).
Damages sustained by reason of nuisance which may be abated, or continuing but not permanent trespass, are recoverable up to time of bringing suit, the reason being that the trespass or nuisance may or may not be continued after the suit is commenced, and if continued, a new cause of action arises therefor. Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951).
Damages from continuing trespass may be setoff in an equitable action for specific performance, cancellation of deeds, and damage to the land in question. Becker v. Donalson, 133 Ga. 864, 67 S.E. 92 (1910).
Permanent injury to freehold.
- This section does not apply to a suit for permanent injury to the freehold. Central of Ga. Ry. v. Kelly, 7 Ga. App. 464, 67 S.E. 118 (1910).
Cited in Williams v. Aycock, 52 Ga. App. 386, 183 S.E. 628 (1936); Groover v. Hightower, 59 Ga. App. 491, 1 S.E.2d 446 (1939); Calhoun v. Edwards, 202 Ga. 95, 42 S.E.2d 426 (1947).
RESEARCH REFERENCES
Am. Jur. 2d.
- 75 Am. Jur. 2d, Trespass, §§ 19, 88 et seq.
C.J.S.- 87 C.J.S., Trespass, § 139.
ALR.
- Measure of damages for interference with percolating waters, 35 A.L.R. 1222; 55 A.L.R. 1385; 109 A.L.R. 395.
Measure of damages for injury to or destruction of growing crop, 175 A.L.R. 159.
Right of trespasser to credit for expenditures in producing, as against his liability for value of, oil or minerals, 21 A.L.R.2d 380.
Measure and elements of damages for pollution of a stream, 49 A.L.R.2d 253.
Easements: way by necessity where property is accessible by navigable water, 9 A.L.R.3d 600.
Recovery in trespass for injury to land caused by airborne pollutants, 2 A.L.R.4th 1054.