City Of Atlanta v. Dinkins

• Decision Date: 08 November 1932
• Docket Number: No. 22406.,22406.
• Citation: 166 S.E. 429,46 Ga.App. 19
• Parties: CITY OF ATLANTA. v. DINKINS et al.
• Court: Georgia Court of Appeals

46 Ga.App. 19

166 S.E. 429

CITY OF ATLANTA.

v.DINKINS et al.

No. 22406.

Court of Appeals of Georgia,

Division No. 2.

Nov. 8, 1932.

Syllabus by the Court.

Where a municipality in building a viaduct raises a street and thereby impairs or destroys the way of ingress to and egress from the property of persons in a block one side of which borders on the raised street, such way of ingress and egress having, before the raising of the street, been directly from the property of the landowners to the street so raised, and the consequential damage to the property caused by the impairment or destruction of the way of ingress and egress diminishes its market value, the municipality is liable to the landowners, although their property does not abut upon the street raised.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by S. C. Dinkins and others against the City of Atlanta. Defendant's demurrer to the petition was overruled, and defendant brings error.

Affirmed.

S. C. Dinkins and others brought suit against the city of Atlanta, alleging that the defendant had injured and damaged them in the sum of $30,000, as hereinafter stated. Plaintiffs own a certain tract of land in the city, on which is located a brick warehouse with three stories and a basement, the west line of which is about 189 feet east of the curb line of Central avenue, as the same was located prior to the erection of the Central avenue viaduct, and which had a frontage of 126.5 feet on the right of way of the Georgia Railroad. This property has been injured by the act of the defendant in erecting, or causing to be erected, the Central avenue viaduct, and erecting, or causing to be erected, elevated streets extending above and over Wall street from the Pryor street viaduct to the Central avenue viaduct, and by the lowering of the spur track of the Georgia Railroad adjacent to and serving plaintiff's land and building on the south. This injury was sustained in 1929. Previous to the lowering of Central avenue and the erection of the Central avenue viaduct, the land and building of plaintiffs was reached on a grade line from Central avenue along a paved driveway by trucks, drays, and pedestrians, who wished to reach the land and building; and previous thereto the building had four doors on its south side for unloading purposes, which doors were on a level with freight car doors, and since the lowering of the spur track, there are now no doors for unloading purposes which are on a level with freight car doors, but the only entrance to the building from the railroad side is by a door newly cut in the basement, which door is over five feet below the level of freight car doors, and at thepresent only one ear may be unloaded at a time, whereas formerly four cars could be unloaded at the time. It was possible before the erection of said viaduct and other structures complained of to reach the property of plaintiffs from Central avenue; now this avenue is closed to them, and their property can only be reached by entering a new street recently opened by defendant and by making a sharp turn at the old Union Depot and going through darkness under the Central avenue viaduct and under the streets leading from Pryor street to Central avenue. It is now impossible, by reason of the viaduct and other structures complained of, to truck shipments as heretofore from the basement to the loading platform by reason of the steep ascent made necessary by the lowering of the tracks and the consequent lowering of the platform. By reason of the lowering of the spur track and the consequent inability to load and unload more than one car at a time plaintiffs have been seriously hampered in the efficient and orderly handling of shipments, and it has been necessary for them to go to the expense of engaging additional help to expedite the loading and unloading of freight cars. Plaintiffs' property has been almost completely isolated by the act of the defendant in constructing, or causing to be constructed, said viaducts and other structures; and ingress to and egress from said building has been most seriously interfered with and the isolation of their property has materially reduced its value. No improvements have been made to plaintiffs' property so as to compensate them for the injuries thus sustained. They had a right to rely on the grade lines previously established by the defendant when they acquired the property, and by reason of the acts of the defendant, it has done permanent and irreparable injury to the market value of their property. The market value of their property previous to acts of the defendant complained of was $90,-000, and its present market value not more than $60,000. The lowering of the spur track by the defendant was not only unnecessary as a part of the twin-viaduct construction, but the defendant gave no notice to plaintiffs that it was going to lower it, nor did the defendant give any consideration to their objections to the lowering thereof when the work was begun, which was made to the chief of construction of the defendant. This spur track had been used by plaintiffs for about 30 years, and it could have been left on the same grade line without in any way interfering with the general viaduct scheme and it was not necessary as a part of the scheme in building the viaducts to lower this track. The defendant in closing Central avenue to plaintiffs' property closed their outlet into Central avenue, which was formerly reached on a grade line along a paved driveway of sufficient size to accommodate trucks and drays. It is no long er possible to reach their property from Central avenue, and the shutting off of this means of ingress and egress has so isolated their property that their customers have great difficulty in finding plaintiffs' place of business and a great many of these customers have been lost to them for the reason that they are unable to find their place of business. By reason of the closing of plaintiffs' outlet into Central avenue, it has been necessary for them to rent a private driveway, which runs along the north side of their property into Decatur street, for $25 per month. Plaintiffs gave to the defendants the notice required by section 910 of the Civil Code of 1910.

The defendant demurred to the petition, on the ground that no cause of action is stated against it; that it appears that plaintiffs' property was situated in the middle of the block and does not abut on Central avenue; that it appears that their property is reached by some private road to and from Central avenue; that this road has been maintained and kept open and is now being used, and the city has not interfered with plaintiffs' property in any way whatever; that the defendant made changes on the street, built a viaduct, but that it does not appear that plaintiffs' property abutted on this street; that it does not appear that the defendant has done anything which it did not have a right to do; and that it does not appear in any way that the defendant interfered with plaintiffs' property in constructing the viaducts and lowering the spur track.

The court overruled this demurrer, and to this judgment the defendant excepted.

J. L. Mayson, C. S. Winn, and J. C. Savage, all of Atlanta, for plaintiff in error.

Spalding, MacDougald & Sibley and Estes Doremus, all of Atlanta, for defendants in error.

SUTTON, J. (after stating the foregoing facts).

The city contends that the petition did not set forth a cause of action against it, on which the plaintiffs could recover. It relies on the case of Ward v. Georgia Terminal Co., 143 Ga. 80, 84 S. E. 374, in which it was held that: "The alteration and change of grade of a portion of a street in a city, permitted and sanctioned by lawful authority, whereby the value of land abutting on another part of the street beyond a cross-street is lessened, is not a ground of action, where the...