Bros v. City Of Mcdonough

• Decision Date: 10 December 1934
• Docket Number: No. 24196.,24196.
• Citation: 50 Ga.App. 234,177 S.E. 749
• Court: Georgia Court of Appeals
• Parties: stansell & rape bros. v. city of Mcdonough.

50 Ga.App. 234

177 S.E. 749

stansell & rape bros.

v.city of Mcdonough.

No. 24196.

Court of Appeals of Georgia,

Division No. 2.

Dec. 10, 1934.

Syllabus by Editorial Staff.

Error from Superior Court, Henry County; G. Ogden Persons, Judge.

Suit by Stansell & Rape Bros, against the City of McDonough. Judgment for defendant, plaintiffs' motion for a new trial was overruled, and plaintiffs bring error.

Affirmed.

D. K. Johnston, of Atlanta, and Brown & Brown, of McDonough, for plaintiffs in error.

E. L. Reagan, of McDonough, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

Stansell & Rape Bros., a partnership, brought suit against the city of McDonough for damages on account of the diminution in market value of certain realty owned by them in said city, alleged to have been caused by the lowering by the city of the grade of the street upon which their property fronted. Plaintiffs owned a certain lot in said city upon which they operated a garage and filling station business. They set up that the lowering of the street level rendered their property inaccessible and that it was necessary for them to remodel the garage building and floor and the filling station at an expense of about $1,000. They set up that their property was worth $3,000 before the lowering of the grade of this street by the city, and that by reason thereof it was now only worth $1,500, and they asked damages of the city for the difference. The city contended that it was necessary to lower the grade of this street in order to pave the street in accordance with the plan adopted, that plaintiffs' said property was not rendered worthless thereby, but that, on the contrary, its market value was enhanced, by reason of the paving of the street in front thereof, to an amount equal to or greater than the alleged damage suffered by the plaintiffs on account of the alleged diminution in market value of their said property. Upon the trial there was evidence tending to sustain the defense set up by the city, and the jury found in favor of that defense. The trial judge overruled the plaintiffs' motion for a new trial, and plaintiffs excepted.

1. The verdict was not contrary to the law and to the evidence. There was evidence tending to show that the plaintiffs' property, together with that of others abutting upon the same street, was enhanced in market value by the paving of this street in front thereof, which enhancement was equal to or more than the amount of damages alleged to have been suffered by the plaintiffs on account of the lowering of the grade of the street in order to pave it

(a) "Where real estate has been damaged by an abutting street improvement made by a city, the owner cannot recover any damage for an alleged decrease in the market value of the property where, by reason of the enhanced value of the property by virtue of the improvement, the market value of the property has not been decreased." Morgan v. City of La Grange, 31 Ga. App. 686 (1), 121 S. E. 703, and cit. See, also, Williamson v. City of Savannah, 19 Ga. App. 784, 92 S. E. 291; Mayor & Aldermen of Savannah v. Williamson, 22 Ga. App. 672, 97 S. E. 104; City of Americus v. Tower, 3 Ga. App. 159, 59 S. E. 434. 2. Competent evidence as to any improvement in or benefit to the business of certain property owners, conducted upon their city property, contiguous to and fronting on a street resulting from the paving of the street by the city, would be admissible in a suit brought by the property owners against the city for damage to their property, alleged to have been caused by the lowering of the street in front of their property in order to pave it, as tending to show that petitioners' property has been enhanced in value by reason of such public improvement, in order to set off the damages claimed by the petitioners to have been suffered by reason of the lowering of the street in order to pave it. City of Atlanta v. Williams, 15 Ga. App. 654, 84 S. E. 139; City of Atlanta v. Atlas Realty Co., 17 Ga. App. 426, 87 S. E. 698; Hayes v. City of Atlanta, 1 Ga. App. 25, 30, 57 S. E. 1087.

(a) Evidence, in such a case, that the petitioners' business, that of operating an automobile repair garage and gasoline filling station, lias been benefited by the paving of the street in front of the building occupied by the business on the property fronting such street, in that because of the improvement more travelers pass along said street and by said business, is admissible in support of the contention of the city that petitioners' property has been enhanced in value by reason of the paving of the street in front thereof, which the city claims to be more than the alleged damage to the building of the petitioners resulting from the lowering of the street incident to paving the same. See City of Atlanta v. Nelson, 142 Ga. 324, 82 S. E. 899; Nelson v. City of Atlanta, 138 Ga. 252, 75 S. E. 245; Muecke v. City of Macon, 34 Ga. App. 744, 131 S. E. 124; City of Winder v. Wood, 36 Ga. App. 492, 137 S. E. 107; City of Atlanta v. Atlas Realty Co., 17 Ga. App. 426, 87 S. E. 698.

3. If the plaintiffs' business, conducted upon property owned by them abutting on a street which is paved, is benefited by reason of the paving of the street in front of the business, this fact would be admissible as tending to show that the market value of their property has been enhanced rather than diminished by such public improvement; and, where there is competent evidence from which the jury might well believe that the enhancement in the market value of petitioners' property is thus increased to an amount which is more than the amount claimed by petitioners as damages resulting from the lowering of the grade in front of their prop erty, necessitating changes in the building situated thereon in which they conduct their business, the lowering of which was done as a necessary part of the general plan and scheme of the city in paving such street, then the verdict of the jury in the defendant's favor will be upheld as being authorized by the evidence. Any legitimate and competent evidence tending to aid the jury in determining this matter is admissible. Nelson v. City of Atlanta, supra.

(c) The fact that other property, similarly situated, abutting upon the street paved, was also enhanced in value and received benefits from this improvement, is admissible to show in a general way that plaintiffs' property was also enhanced in value and received benefits from such paving. The jury could well take this into consideration, along with the other evidence adduced upon this matter, in finding that the consequent injury to plaintiffs' property did not exceed the consequent benefit thereto. Nelson v. City of Atlanta, supra.

4. The case sub judice is to be distinguished from those cases where a property owner is seeking damages for the taking of his land for public improvements, and is not seeking damages for apprehended evils and consequential damages. In the former class of cases the incidental benefits resulting to the...