Atl. & B. Ry. Co v. Mcknight

• Decision Date: 11 May 1906
• Citation: 125 Ga. 328,54 S.E. 148
• Court: Georgia Supreme Court
• Parties: ATLANTIC & B. RY. CO. v. McKNIGHT.

54 S.E. 148

125 Ga. 328

ATLANTIC & B. RY. CO.

v.McKNIGHT.

Supreme Court of Georgia.

May 11, 1906.

1. Eminent Domain—Railroads—Construction Injury to Abutting Property.

When a railway company locates its line along a public street, and changes the grade of the street for the purpose of facilitating the construction of its road and the operation of trains thereon, it is liable in an action, to the owner of property abutting upon the street, for any actual damages directly resulting from the change of the grade of the street; and this is true notwithstanding the fact that the change of the grade is made with the consent and under the authority of the municipality in which the street is located, it not appearing that the change in grade is solely a part of a general plan of the municipality in grading its streets.

[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 269, 270.]

2. Same.

The construction and operation of a railway in a public street is a physical invasion of the easement of access of abutting landowners, and is a damage to the property, within the meaning of the constitutional provision which declares that private property shall not be taken, or damaged for public use without just compensation being first paid.

[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 256-260.]

3. Same—Evidence of Damages—Depreciation in Value.

In the trial of a case brought to recover for a damage of the character above indicated evidence as to smoke, noise, dust, cinders, and the like, may be considered by the jury, not as independent elements of damage, but in determining the value of the property, after the railroad has been constructed and is in operation.

4. Same.

This case is controlled by the decision In South Carolina R. Co. v. Steiner, 44 Ga. 546, and Campbell v. Metropolitan St. R. Co., 9 S. E. 1078, 82 Ga. 320, and is to be distinguished from the cases of Austin v. Terminal Ry. Co., 34 S. E. 852, 108 Ga. 671, 47 L. R. A. 755, and Ga. R. Co. v. Maddox, 42 S. E. 315, 116 Ga. 64, for the reason that in the two cases last cited there was no physicial invasion of the property, or any right appurtenant thereto.

5. Same — Inconvenience to Occupants of Property.

If, in an action of the character above indicted, the evidence shows that noise, smoke, dust, cinders, and the like, have damaged the property—that is, its value is depreciated thereby—these elements of damage can be considered by the jury in arriving at the amount of the recovery: but, if they amount merely to an inconvenience or a discomfort to the occupants, they are not elements of damage, and are not to be considered in arriving at the amount of their verdict. In such cases the plaintiff must recover because his property is damaged, not for the reason that the occupant is inconvenienced.

6. Same—Evidence—Sufficiency.

The evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.

(Syllabus by the Court.)

Error from Superior Court, Dooly County; Z. A. Littlejohn, Judge.

Action by J. A. McKnight against the Atlantic & Birmingham Railway Company. There was judgment for plaintiff, and defendant brings error. Affirmed.

McKnight sued the Atlantic & Birmingham Railway Company, alleging that he was the owner of a lot in the city of Cordele, which was located on the corner of Tenth street and Seventh avenue, the former being on the west side of the lot, and the latter on the north side. Upon this lot was a building, the lower story of which was used for storehouses, the upper story being used as a hotel. In 1902, the railway company constructed its line of road along Tenth avenue, and has since that time been operating its trains along that street. The continuous operation of freight and passenger trains so near the property, on account of the smoke, noise, and dust, is a nuisance, and has damaged the property to the extent of $1,000. While the railway was being constructed the defendant lowered the grade of Tenth avenue three feet, removing and excavating the earth in the street adjacent to the property, rendering the same "unapproachable and inconvenient, " and, as a result, damaging the property in the sum of $1,000. The railway company also entered Seventh street, and excavated and removed the earth from the street, adjacent to the property, lowering the grade two feet, thereby rendering the property "unapproachable and inconvenient" and damaging the same in the sum of $1,000. The grading of the street and avenue, and the continuous operation of the trains of the railway company along the street has damaged the property in the sum of $3,000, in that the rental and market value has been decreased by that sum. The value of real property in the city of Cordele of like nature to that owned by plaintiff has, since the construction of the railway, materially increased, but on account of the construction and maintenance of the railway in the street adjacent to plaintiff's property, his property has diminished in value. Petitioner was forced to build a retaining wall at a cost of $120. To the petition the defendant filed a demurrer, but so far as appears from the record, no ruling was ever made thereon, and it seems to have been abandoned. The defendant filed an answer, in which it denied all of the allegations of the petition in reference to the damages claimed, and denied any liability whatever to the plaintiff. One paragraph of the answer contains a special plea alleging, that the defendant constructed its railroad in and through the city of Cordele and along Tenth avenue and across Seventh street, "under full and free consent and ample authority so to do, and that all of the work of grading, done along said avenue and upon said street, was by consent and under proper authority to do the same." The trial resulted in a verdict in favor of the plaintiff for $500. The defendant filed a motion for a new trial, upon the general grounds, which was subsequently amended by the addition of five additional grounds, one of them complaining of the admission of certain evidence, end the remaining four complaining that the verdict was contrary to specified portions of the charge of the court. The motion was overruled, and the defendant excepted.

Rosser & Brandon, Ben J. Conyers, J. L. Sweat, and Crum & Jones, for plaintiff in error.

J. T. Hill and T. J. Royal, for defendant in error.

COBB, P. J. (after stating the foregoing facts). The right of the railway to construct and operate the road longitudinally upon the street is not questioned. That the railway is in the street lawfully is conceded. There was some evidence from which the jury might possibly find that the grading upon both the avenue and the street was done by the railway company, but it is not necessary to determine whether this evidence was sufficient to authorize such a finding, for the reason that the answer of the railway company, construed most strongly against it, in effect admits that it did the grading, and seeks to justify its act in doing the work by pleading the authority of the city to do the work. If the grading of these streets was simply a part of a general plan devised by the city authorities to grade the streets, independent of the use of the same by the railway, and the railway company was in effect the employé or contractor of the city to do this work, it may be that there would be no right of action in the plaintiff against the railway company, but he would be remitted to this action against the city. However, if the change in the grade of the streets was for the benefit and convenience of the railway company, and was done by it under the authority of the city to facilitate the construction of its railroad, and not as a part of a general plan of street grading, the plaintiff would have his action against either the city or the railway company for any damages to his property that resulted from the grading. If a city grades its streets to make them more useful to the public, and private property is damaged as a result of this improvement, the owner is entitled to his action against the city. If a railway company finds it necessary to...