
    11149.
    Central of Georgia Railway Co. v. Clements.
   Stephens, J.

1. Where the petition alleges a cause of action for damages arising from the maintenance and continuance of a nuisance which is not of a permanent character and which may be abated, and prays for damages on account of the diminished market value of the freehold, and the measure of damages is not excepted to by demurrer, and evidence in support of the same is admitted without objection, the defendant cannot complain of a charge of the court instructing the jury that the plaintiff’s measure of damages for the maintenance and continuance of tlie nuisance is the diminution in the market value of the property injured.

Decided August 16, 1920.

Action for damages; from Polk superior court—-Judge Irwin. November 15, 1919.

J. Branham, Maddox & Doyal, W. K. Fielder, for plaintiff in error.

John K. Davis, Mundy & Watkins, contra.

2. ’ The charge of the court confined the plaintiff’s right to recover to damages on account of the maintenance and continuation of the nuisance for four years prior to the filing of the suit, and fully and fairly submitted all the issues to the jury, and is not subject to any of the objections urged. In the absence of any request to charge, the defendant cannot complain that his theory of the case was not fully given.

3. It is fairly inferable from the evidence that the proximate cause of the plaintiff’s damage was the negligence of the defendant. The evidence supports the verdict, and it cannot be held to he excessive.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.  