City Of Atlanta v. Gore
| Citation | 169 S.E. 776,47 Ga.App. 70 |
| Decision Date | 29 May 1933 |
| Docket Number | No. 22614.,22614. |
| Parties | CITY OF ATLANTA. v. GORE. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by Editorial Staff.
Error from Superior Court, Fulton County; G. H. Howard, Judge.
Suit by C. G. Gore against the City of Atlanta. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.
Affirmed.
J. L. Mayson, C. S. Winn, and J. O. Savage, all of Atlanta, for plaintiff in error.
Mitchell & Mitchell, of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
1. "Every owner of property which abuts upon a street has a property right in the street, as an easement for the purpose of access to his premises." Franklin v. City of Atlanta, 40 Ga. App. 319, 321, 149 S. E. 326, 327. Accordingly, the construction by municipal authorities in a city street of a public improvement, such as the widening and paving of the street for automobile traffic and the elimination thereby of sidewalks, which results in permanent injury to the property of an abutting lot owner, gives to the owner a right of action. "Nor is it material whether the property damaged abuts directly upon the improvement, or is distant therefrom." It Pause v. City of Atlanta, 98 Ga. 92 (2), 101, 102, 104, 26 S. E. 489, 492, 58 Am. St. Rep. 290; Lewis on Eminent Domain, 307, § 227; Tulsa v. Hindman, 128 Okl. 169, 261 P. 910, 55 A. L. R, 891.
2. The plaintiff in this case obtained a judgment against the municipality for $3,457.50 damages to her property, consisting of a lot and a four-unit apartment house, by reason of the widening and paving of the contiguous street and sidewalks. The verdict was not without evidence to support it. Nor, under the foregoing rules, is it contrary to law. As in the Pause Case, it is not necessary to decide what rule will be adopted where an obstruction is so remote from the property of the person injured as to render it doubtful whether damage may be fairly attributed to the obstruction or to other independent causes, since there was evidence in the instant case from which the jury were authorized to find that the elimination by the city of sidewalks previously in front of and extending from the property of the plaintiff to the nearest intersecting street directly affected the value of her property,
3. "A judgment rendered at a prior term of court, to which exception is not timely taken, fixes the law of the case, " and concludes the parties upon all questions necessarily involved in the decision of the points previously raised. Loughridge v. City of Dalton, 166 Ga. 323 (1), 143 S. E. 393; Ogletree v. Stanley, 43 Ga. App. 253, 158 S. E. 465. The court overruled all demurrers to the petition, except a special demurrer, striking allegations not here involved. There was no exception to this judgment, determining the general law of the case.
4. In one of the special grounds (No. 17) of the motion for new trial, error is assigned on the charge of the court on the general law applicable to the case, in which the jury were instructed that an "owner of property which abuts upon a street or sidewalk has a property right in the sidewalk, whether taken from her lot or not, or whether the sidewalk belonged to the city or not, as an easement for the purpose of access to and from his premises or a right of ingress and egress to and from her lot along the sidewalk to and from the nearest cross street or sidewalk, and a deprivation of this property right, if that was done, gives a right of action for damages, provided causing reduction or diminution in the market value of the entire property of the owner bordering on the sidewalk at the completion of work by the city." The petition of the plaintiff being partly based on the theory of her right of ingress and egress not only from the street touching her property, but also along the sidewalk therefrom to the nearest cross street, 108 feet distant, and the judgment on demurrer fixing the law of the case, in accordance with the rule stated in the preceding paragraph of the syllabus, exception cannot be taken to the instruction, which in effect charged such law. Moreover, the instruction did not contravene the rules of law applicable to sidewalk cases, as determined by the Pause Case, supra, and stated in the first division of the syllabus.
5. The first ground of the amendment to the motion for new trial complains of the introduction, over defendant's objection of irrelevancy, of the following question to and answer of the plaintiff: Since it appears that similar testimony of the plaintiff, testifying as to specific amounts of reduction in the rental value of the property in question, was admitted without exception, the admission of the evidence complained of could not under any view of the law be deemed prejudicial. Moreover, while the proper measure of damages in a case of this nature is the diminution in market value (Roughton v. City of Atlanta, 113 Ga. 948, 39 S. E. 316), yet difference in rental value may be shown as a circumstance tending to prove such diminution, or in corroboration of other evidence of diminution. City of Atlanta v. Atlas Realty Co., 17 Ga. App. 426 (2), 87 S. E. 698.
6. "A ground of a motion for a new trial, assigning error in permitting a witness to answer a certain question, which does not disclose" in terms or substance "the answer objected to, presents no question for determination." City of Moultrie v. Cook, 11 Ga. App. 649 (1), 75 S. E. 991; Phinizy v. Bush, 135 Ga. 678 (1), 70 S. E. 243; WardTruitt Co. v. Nicholson, 23 Ga. App. 672 (2), 99 S. E. 153; Sheppard v. State, 167 Ga. 327 336 (4), 145 S. E. 654. The second, third, fourth, fifth, and twelfth grounds of the amendment to the motion for a new trial, under this rule, must be determined adversely to the movant.
7. "Under a denial of the allegations in the plaintiff's declaration, no other defense is admissible except such as disproves the plaintiff's cause of action; all other matters in satisfaction or avoidance must be specially pleaded." Civil Code 1910, § 5636. "Pleas of accord and satisfaction are pleas in confession and avoidance." 1 C. J. 572, § 110. The burden of pleading and proving the existence, terms, and effect of an accord and satisfaction under section 4326, or a compromise settlement under section 4330 of the Civil Code, is on the party relying upon the same. Glisson v. Burkhalter, 31 Ga. App. 365, 366 (5), 120 S. E. 664. The sixth ground of the amendment to the motion for a new trial complains of the exclusion of testimony, in that, when a witness for the defendant city was on the stand, the city offered to prove by him that he "was chairman of its committee on claims, had a number of conversations with [plaintiff], and, as a result of these conversations, he entered into an agreement with her, representing the city, which is set out in resolution" dated July 30, 1930, and approved July 11, 1930, "and after it...
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