Brown v. City of Atlanta

• Decision Date: 17 November 1928
• Docket Number: 6676.
• Parties: BROWN v. CITY OF ATLANTA et al.
• Court: Georgia Supreme Court

145 S.E. 855

167 Ga. 416

BROWN v. CITY OF ATLANTA et al.

No. 6676.

Supreme Court of Georgia

November 17, 1928

Rehearing Denied Dec. 15, 1928.

Syllabus by the Court.

Under the pleadings and the evidence, the court was authorized to find that the municipality was not proceeding to "deprive" the petitioner of his property, in the sense in which the word "deprive" is employed in the due process clause of the Constitution, either state or federal. The court did not err in refusing to grant an interlocutory injunction as prayed. The fact that before proceeding to make the street improvements indicated the city did not serve notice on the abutting owner or appoint assessors to appraise the damages does not require a different result.

[Ed Note.-For other definitions, see Words and Phrases, First Second, and Third Series, Deprive.]

Some of the contentions made in the petition are not mentioned in the briefs of the plaintiff in error, and are treated as abandoned.

The motion to dismiss the writ of error, based upon the ground that the acts sought to be enjoined have already been accomplished, is denied, the plaintiff in error having filed under oath a denial of the facts stated in the motion. The denial raised an issue of fact which this court has no jurisdiction to decide. Cooper v. Nisbet, 118 Ga 872, 45 S.E. 692; Johnson v. Tanner, 126 Ga. 718, 56 S.E. 80.

Russell C.J., dissenting.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Petition for injunction by Walter R. Brown against the City of Atlanta and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Writ of error will not be dismissed, where plaintiff in error denied facts in motion to dismiss on ground that acts sought to be enjoined were accomplished.

Walter R. Brown filed a petition making the following case: Petitioner owns a tract of land at the intersection of South Pryor and East Hunter streets in the city of Atlanta, on which is a two-story building, the first fioor of which is rented for stores and the second floor for offices. Ingress and egress are had by stairways leading up from both streets, these streets being public thoroughfares and "public easements." The city of Atlanta, its chief of construction, and a construction company, the defendants, "by themselves, their agents, or employees, are attempting by force and arms to interfere with the use of said premises by your petitioner and his said tenants, and are attempting and threatening, over the protest of your petitioner, to block and close up the right of ingress and egress to said premises by closing up and obstructing the sidewalk and sidewalks upon which said premises abut on East Hunter and South Pryor Streets. *** Said trespass and threatened trespass is in violation of your petitioner's rights in the premises, and if persisted in and allowed will entail upon your petitioner damages not computable in dollars and cents, and will in effect confiscate your petitioner's property and take the same without due process of law, and in violation of your petitioner's right of enjoyment under the constitution of the State of Georgia, and also under the constitution of the United States of America. *** The premises herein described front upon public easements known as East Hunter and South Pryor Streets in the City of Atlanta, and *** said easements are public thoroughfares, and *** his right of enjoyment to the use of said easements as the means of ingress and egress, to the use of said premises by himself and his said tenants, is an inherent right vested in him by the constitution of the State of Georgia, and by the constitution of the United States of America. And that the attempted and threatened interference with his right with [is] a trespass for which he has no adequate remedy at law, and the damages resulting to him are not computable in dollars and cents, and amounts to confiscation of his property rights without due process of law." The city threatens to raise the grade of East Hunter street and reduce the width of the paved sidewalk adjacent to petitioner's building, though petitioner contributed to the construction of said sidewalk. The changes will cause petitioner to lose $750 monthly rental and will confiscate his property, destroying the uses for which it was built, and destroying the ingress and egress easements.

The city was allowed to create a bonded indebtedness to build viaducts on South Pryor street and Central avenue; but the closing of East Hunter street is not contemplated therein, and the use of any such moneys in any manner than contemplated in the call for a bond issue is illegal and void, especially since changing the grade of East Hunter street is not necessary to erect said viaducts. No notice was given petitioner as to changing said grade. Besides, the obstruction at the intersection which is threatened would be an abandonment of South Pryor street from East Hunter northwardly for 500 feet, contrary to law and the charter power of said city. The city is confederating with the commissioners of Fulton county in said construction work, said commissioners having unlawfully voted $396,068.68 to help pay for said viaducts, an ultra vires act, as is also the act of the city in agreeing to accept the same. The county commissioners have also unlawfully designated a commissioner to deed to the city certain of the county's lands in furtherance of the enterprise. The city has unlawfully undertaken to cede control to said county of the above-named streets for the purpose of making said changes, an act ultra vires, null and void, and a trespass remediable only in a court of equity. The alterations of said streets are being attempted without any notification to petitioner of the appointment of assessors to assess the damages to petitioner's property, contrary to law. "Petitioner *** paid for the pavement on the sidewalks along the East Hunter Street and South Pryor Street fronts, and also paid for pavement of one third of the street between curbs, together with the cost of curbing, and the pavement material, consisting of belgian blocks, granite curb, and tiling is the property of your petitioner. *** The City of Atlanta, by and through its agents, is threatening and undertaking to destroy said pavements and said curbing and tiling as paid for by your petitioner along East Hunter Street and South Pryor Street in front of petitioner's property, without offering to pay for same to your petitioner; and *** such attempted taking and destruction of your petitioner's property is without due process of law and a denial to him of his inherent right under the original law, and is a trespass to prevent which he has no adequate remedy at law." The prayers are that the city, its engineer, and the construction company be enjoined from interfering with the use of said sidewalks and streets of obstructing either of said highways in the manner complained of; that the county be enjoined from paying and the city from using said above sum of money; that the county commissioners be enjoined from deeding said strip of land; that the city be enjoined from using any money derived from the sale of said viaduct bonds for any other purpose than those stated in the issue, and especially from using any part thereof for changing the grade of East Hunter street.

The city answered, admitting the changes in the streets, but denying that they were illegal, and asserting that they were pursuant to the lawful building of said viaducts. It alleged the closing of Hunter street was temporary, pending the construction of the viaducts, and that adjustments on said streets were necessary. It further alleged that petitioner would in fact benefit by a large increase in property values generally incident to building the viaducts, and would profit rather than lose by the venture. It denied that the street was any part of the property of petitioner, as an easement or otherwise, and that any of the sidewalk or street paving materials laid alongside plaintiff's property belonged to him, alleging that "plaintiff was assessed for the improvements in the streets on which his property abuts, but he did not pay for any particular part of the pavement and has no title or interest in same. *** Plaintiff has no title in sidewalks or width of same or otherwise. That is entirely a matter over which the City of Atlanta has control. *** This pavement is a part of the street, and plaintiff, like other property owners, was assessed for same, but, when so improved, the title is in the public and not in plaintiff." The city's answer further set up that the bond issue contemplated the East Hunter street changes because it provided for approaches from side streets to the viaducts; that petitioner had had two year's notice since the bond issue was voted in March, 1926, that period intervening because of litigation; that the General Assembly authorized the viaducts over the state's Western & Atlantic Railroad; that the city was making improvements which would save rather than destroy petitioner's property; that the funds voted by the county had already been paid to the city, and the deeding of said strip of land would redound to the county's benefit by the making of a better approach to its courthouse; and that the public voted money for these improvements, the money had been raised and the contracts let, and further litigation, like petitioner's, only served to delay an inevitable progress and resulted in injury to the public and to private property.

On the hearing the petitioner testified to the matters alleged in his petition, and offered documentary evidence. The defendants admitted that petitioner had not been given any notice offering to compensate him for damages, and that no appraisers had...