Chattahoochee Val. Ry. Co. v. Bass

• Decision Date: 25 February 1911
• Docket Number: 2,679.
• Citation: Chattahoochee Val. Ry. Co. v. Bass, 70 S.E. 683, 9 Ga.App. 83 (Ga. App. 1911)
• Parties: CHATTAHOOCHEE VALLEY RY. CO. v. BASS.
• Court: Georgia Court of Appeals

70 S.E. 683

9 Ga.App. 83

CHATTAHOOCHEE VALLEY RY. CO. v. BASS.

No. 2,679.

Court of Appeals of Georgia

February 25, 1911

Syllabus by the Court.

There was no error in overruling the defendant's demurrers to the petition as amended. Where three town lots originally distinct are merged by the possession of a single owner, and are together occupied by the owner as a home, the statement that a portion of one of these lots was taken for use by a railroad company is merely descriptive of the particular portion of the entire tract which was taken. The reference made to the fact that the home place originally consisted of three lots is not objectionable as creating a misjoinder of different causes of action.

The owner of a lot of land has a right of action to recover the market value of any portion of it taken without his consent by a railroad company for its use, and this right is not dependent upon whether the market value of the remainder of the lot is increased or diminished in consequence of the construction of the railroad. Nor is the right of recovery defeated by reason of permissive possession of a portion of the lot by the railroad company for a spur track prior to the time when the route of the main line of the railroad was diverted and the spur track changed to a part of the main line. The use of a spur track is so different from that to which the main line is put that land occupied permissively by a railroad company for the purpose of a spur track only is not for that reason alone subjected to the use of the railroad as a part of its main line. Mere use of the land of another by a railroad company for a spur track does not of itself make this land a part of its adjoining right of way.

The court did not err in refusing to allow the amendment by which the defendant sought to set up in its answer an agreement on the part of the plaintiff that the defendant should occupy a portion of her premises and an award, alleged to have been made prior to the acts alleged in the petition, more especially as the defendant did not set up the alleged award as a defense to the action. There was no plea of accord and satisfaction, and it appears that the alleged agreement to arbitrate was made after the present suit was filed.

The fact that one may be entitled to recover the market value of a portion of a residence lot actually taken by a railroad company does not preclude the recovery of any damages to the remainder not taken, which result from the construction and maintenance of the railroad, and a petition which includes both items of damage is not, for that reason alone demurrable. As both items of damage are recoverable in the same action, it is not error for the court in such a case to refuse to compel the plaintiff to elect.

While in an action to recover for damage to the plaintiff's property, the evidence must be confined to that damage, and while mere personal inconvenience to the owner, such as inability to hear over a telephone on account of surrounding noises, is not an element of such damage, still the existence of such circumstances as the creation of unusual and distracting noises, inability to hear over the telephone prevalence of smoke and dust, and other like facts, may be used to illustrate and corroborate other evidence that there has been a depreciation of the market value of the premises consequent upon the creation of these undesirable surroundings.

The statements of the plaintiff to the effect that she never consented for the railroad to cross this land, and that she "did not consent for them to build the road across there at all at any time," are not objectionable as being mere conclusions of the witness. The statement that the witness did not consent was, prima facie at least, the statement of a substantive fact, even though further examination might in some cases disclose that the denial of consent was a conclusion not properly supported by the real facts. The same ruling applies to the denial of any authority as agent by one alleged to be an agent. As to many facts an affirmation of their existence might be a conclusion, while the denial of the existence of the fact, from the very nature of the case is direct evidence.

That the judge in the presence of the jury reiterated certain statements of a witness, as preliminary to asking a question which naturally depended upon the previous statements of the witness, did not constitute an expression or intimation of opinion as to those statements. The witness having testified that the plaintiff's husband refused to give the right of way, it was not error for the court to ask the same witness whether such refusal was before or after the construction of the railroad.

It is not error to refuse to receive evidence not pertinent to the pleadings. The defendant not having defended upon the ground that the plaintiff was concluded by a prior award upon an arbitration, evidence that an award had been made would not have been admissible, and in no view of the case was a paper relevant or admissible which did not evidence that it was made by the plaintiff or by her authority or was in any way binding upon her.

Exceptions to the refusal to exclude testimony, which attempt to assign error without stating the objection urged in the trial court, and which merely quote the testimony to which objection is alleged to have been made, are too indefinite for consideration.

The question as to whether the defendant railroad company entered the premises of the plaintiff with her consent was one of fact; and the court fairly submitted it to the jury and told them that, if the entry was with her consent, she could not recover. The jury must be assumed to have found that she had not consented, in view of their finding in her favor.

The practice of several times repeating in extenso the contentions of the parties, while charging the jury, is not to be commended; but, where they are so fairly and impartially stated as they were in the present case, the error is harmless.

There is no merit in the assignments of error predicated upon excerpts from the charge of the court when those portions of the charge are considered in connection with the context and with the charge as a whole. If the defendant was entitled to defeat the recovery of damages by reason of the fact that it was the owner of the land upon which its tracks were built, prior to their construction, this defense should have been asserted by proper allegations in the answer. As no such defense was presented in the answer, evidence to the effect that the defendant was in possession of some part of the land prior to the entry and injury alleged in this case was irrelevant and inadmissible, and the court was not required to charge upon a defense not suggested by the pleadings.

Where a ruling upon the admissibility of testimony is invoked or is necessary, the judge may state his recollection of testimony already introduced, when, in stating that there is or has not been...