City Of At1anta v. Green
| Decision Date | 30 September 1881 |
| Citation | 67 Ga. 386 |
| Parties | City of At1anta . vs. Green. |
| Court | Georgia Supreme Court |
Damages Municipal. Corporations. Constitutional Law Before judge Clark. City Court of Atlanta. June Term, 1881
Reported in the decision.
W. t. Newman, for plaintiff in error.
Thomas Finley for defendant.
This was an action brought by Patsey Green against the city of Atlanta for damages. There were two countsin the declaration. The first charged the defendant below with damages to her lot by said city, by reason of its negligence in throwing earth on her lot in the grading of a street of said city, and thereby causing the overflow of her premises with sand and water destroying her garden and rendering it unfit for use and cultivation
The second count was for damages to her lot resulting from the grading of the street bounding the same, by raising the level of said street fifteen feet higher than it was originally, opposite plaintiff's lot, thereby permanently injuring her property and her fences, and making it difficult for her to have access to her home.
On the trial of the case, under the evidence and charge of the court, the jury returned a verdict in favor of the plaintiff, whereupon defendant moved for a new trial; which was overruled, and defendant below excepted
There were two grounds of error complained of in the instructions the court gave to the jury made by the plaintiff in error, and by reason of which he seeks a new trial.
(1). The first was that the court refused to charge the jury as requested by the defendant below in writing, as follows:
"The city would have a right to grade the street in question, and no right of action would accrue to plaintiff from injuries caused by such grading, unless there was a direct invasion of the plaintiff's premises, and for such direct invasion of her lot she would be entitled to recover the damages caused thereby.'
(2). The second ground was the refusal of the court to charge " The defendant would have the right to set-off any enhancement in value, or benefit to the property by the improvement, against the damages sustained by plaintiff in consequence of the same " but charged the converse of this proposition.
1. It has, no doubt, long been the well settled rule in this state, as recognized and enforced by our courts, that municipal corporations are not liable for consequential damages caused by the raising and lowering of the grade ofstreets, and the decisions have rested upon the common law doctrine that the proper construction and improvement of streets are supposed to be made for the public good, and that private injury or inconvenience that may arise to adjacent lot-holders, as a consequence of such raising or lowering the grade of the street must be borne by the proprietor without compensation, because his right to such must yield to the promotion and advancement of what is the public good of the city. See 23 Ga., Mark-ham vs. City of Atlanta, 402; 28 Ga., 46; 34 Ga., 326; 49 Ga., 19
But it is now claimed, and so the court instructed the jury, that this rule had been changed by a provision of the constitution of 1877, contained in the last clause of paragraph 1, section 3, of the "Bill of Rights, " which reads as follows: " Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid."
It is not denied by counsel for plaintiff in error that under this provision of the constitution any direct and immediate damage done to private property, such as its invasion or spoliation thereof, the city would be liable for damages and be compelled to make just compensation as by the constitution provided: but he insists that it was not the intent or purpose of the framers of that instrument to vary or change the rule, so well established and long recognized by the courts, that in improving the streets by raising or lowering the grade thereof, the city would not be liable to respond to lot owners bounding thereon for any consequential damages resulting therefrom. The duty devolves upon this court, then, to construe, for the first time, this clause in the Bill of Rights. In previous constitutions the words varied from the present: " Private...
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...we held that the Just Compensation Provision waived governmental immunity for some claims for monetary relief. See City of Atlanta v. Green , 67 Ga. 386, 387-389 (1) (1881). In Green , we construed the 1877 version of the Just Compensation Provision, which required the payment of compensati......
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