City of Atlanta v. Nelson
| Decision Date | 16 September 1914 |
| Docket Number | 539. |
| Citation | 82 S.E. 899,142 Ga. 324 |
| Parties | CITY OF ATLANTA v. NELSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
This court cannot undertake to determine whether or not error was committed by the trial judge in refusing to permit counsel to ask a witness and have him answer a given question, when it does not appear what the answer would have been had it been made.
In a suit against a municipal corporation by an owner of abutting land, to recover damages to his property by reason of the erection of a viaduct over the street on which the property abutted, it was no ground for new trial, under the facts of the case, that the court excluded the testimony of a witness that he thought the property would be enhanced in value on the supposition that it had railroad facilities.
In an action to recover damages to abutting property on account of the erection of a viaduct, the trial of which occurs several years after its completion, where one of the facts relied on to demonstrate an enhanced value of the property is the increased travel on the street by the property since the improvement, the testimony should be so restricted as to time as to afford a reasonable inference that the increase of travel is due to the public improvement, and not to other causes, such as the growth of the city, the shifting of business or population centers, and the like.
The measure of damages for an injury to abutting property caused by a change in the grade of the street is the difference, if any, in the market value of the property before and after the change in the grade, as caused by such change. An instruction wherein it is stated that the market value of the property is that "immediately" before and after the change in the grade, but which is otherwise in harmony with the rule above stated, will not require a new trial.
In ascertaining the fair market value before and after the change in the street, the property is to be regarded as a unit, taking into consideration any and all uses to which it is adapted. And, while its value for a particular use is not the test of market value, it may be considered with a view to ascertaining what the property will bring in the market. The excerpts from the charge, quoted in the fifth division of the opinion, are not approved as being accurate, but, for the reasons therein stated, they are not deemed prejudicial to the plaintiff in error.
A charge to which exception is taken was introductory to an instruction that an abutter cannot claim damages for any diminished market value of his property, caused by the closing of a street that he agreed to be closed; and such charge was not calculated to be misunderstood by the jury as an instruction that the right of ingress to and egress from the property was to be included in the assessment of damages as separate and independent items.
The damages awarded by the jury were much less than the amount fixed by the testimony of the plaintiff's witnesses, and the verdict cannot be regarded as excessive.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by C. K. Nelson, trustee, against the City of Atlanta. Judgment for plaintiff, and defendant brings error. Affirmed.
Jas. L Mayson and W. D. Ellis, Jr., both of Atlanta, for plaintiff in error.
Chas T. & L. C. Hopkins, of Atlanta, for defendant in error.
The city of Atlanta projected Washington street over the railroad tracks at the northern end of it, to a street on the northern side of the tracks, by means of a bridge or viaduct of the same width of the street. The viaduct and its approaches changed the grade of the street in front of the property of the Episcopal Church. The trustee of the church property instituted an action to recover damages consequentially resulting to the property from the construction of the viaduct. The case was tried and a verdict was rendered, which was set aside by this court. Nelson v. Atlanta, 138 Ga. 252, 75 S.E. 245. On the second trial a verdict was rendered in favor of the plaintiff, and this writ of error is to the refusal of the court to set it aside on motion for a new trial.
1. Complaint is made that the court refused to allow certain witnesses to answer questions propounded to them. The nature of the answer which would have been given by the witness is not disclosed. The assignment of error on that account is defective. Atlanta Consolidated Street Ry. Co. v Bagwell, 107 Ga. 157, 33 S.E. 191.
2. A witness was asked, "Suppose it [referring to the property of the plaintiff] has railroad facilities, wouldn't that largely increase its value?" The answer was, "I think it would." The court ruled out the question and answer. The city contends that the evidence was competent as illustrating the use to which the property of the plaintiff could be put after the building of the viaduct, as compared to the uses made of it prior to the time of the building of the viaduct. There was evidence that a railroad company had built its yards adjacent to the property. The tracks were below the level of the premises and of the viaduct. The contiguity of the railroad tracks, under the condition of the property, rendered it highly supposititious or speculative as to whether the plaintiff's property had any railroad facilities. Certainly a new trial will not be granted on account of the refusal of the court to allow a value for a supposititious use to be considered in arriving at market value.
3. The trial occurred several years after the construction of the viaduct; and the city offered testimony that the travel over the viaduct was greater than the travel before the viaduct was built, along Washington street from and into Waverly Way a street that was closed by the viaduct. It would have been competent to prove, as one of the elements entering into the value of the abutting property, the difference in the travel on the street in front of the abutting property before and after the construction of the viaduct. The range of time respecting the travel after the construction of the viaduct should be limited to such time as would reasonably show that the travel resulted from conveniences and opportunities afforded by the viaduct. After several years have elapsed, this increase in travel may be due to other causes, such as the increase in...
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