City of Atlanta v. Gore

• Decision Date: 29 May 1933
• Docket Number: 22614.
• Citation: 169 S.E. 776,47 Ga.App. 70
• Parties: CITY OF ATLANTA v. GORE.
• Court: Georgia Court of Appeals

169 S.E. 776

47 Ga.App. 70

CITY OF ATLANTA v. GORE.

No. 22614.

Court of Appeals of Georgia, Second Division

May 29, 1933

Syllabus by Editorial Staff.

As respects damages, abutting property owner has property right in street as easement for purpose of access to his premises.

Street widening resulting in permanent injury to his property gives abutting lot owner right of action, regardless whether property damaged abuts directly upon improvement.

Recovery of damages to property by reason of defendant city's widening and paving of contiguous streets and sidewalks held authorized.

Judgment rendered at prior term of court, to which exception is not timely taken, fixes law of case, and concludes parties upon all questions necessarily involved in decision of points previously raised.

Where not excepted to, judgment overruling demurrers to petition determined general law of case.

Instruction charging theory of petition, demurrers to which were overruled without exception, could not be excepted to, since judgment on demurrers fixed law of case.

Admission of testimony similar to other testimony admitted without exception held not prejudicial.

Proper measure of damages to which abutting owner is entitled by reason of street improvement is diminution in market value of abutting property.

In abutting property owner's suit for damages from street improvement, testimony of diminution in rental value is competent as circumstance tending to prove diminution in market value, or in corroboration of other evidences of diminution.

Ground assigning error in permitting witness to answer certain question, which does not disclose, in terms or substance answer objected to, presents no question for determination.

Pleas of accord and satisfaction are pleas in confession and avoidance as respects necessity of pleading specially (Civ Code 1910, § 5636).

Burden of pleading and proving existence, terms, and effect of accord and satisfaction or compromise settlement is on party relying thereon (Civ. Code 1910, §§ 4326, 4330, 5636).

In abutting property owner's suit for damages from street improvement, where defendant's answer was in nature only of plea of general issue, excluding testimony of settlement held not error (Civ. Code 1910, §§ 4330, 5636).

Where proof of alleged settlement was inadmissible to establish satisfaction or avoidance of plaintiff's claim, exclusion of offer thereof for purpose of impeaching plaintiff's testimony, elicited on cross-examination, that she did not agree to settlement, held harmless (Civ. Code 1910 §§ 4330, 5636).

In abutting property owner's suit for damages from street improvement, excluding testimony that witness had observed that turning of residence streets into business streets resulted in improvement of street held harmless error, under facts.

Facts disclosed that the testimony was not linked with the improvement in question, nor even with the same municipality, and that the evidence did not show that the improvement would in fact turn the street in question into a business street, and that the materiality of the testimony did not appear.

In abutting property owner's suit for damages from street improvement, testimony that improvement of street for two, or three, or four blocks would possibly injure one block, and in specific cases one might not be as much improved as others, held too indefinite to be prejudicial.

In abutting property owner's suit for damages from street improvement, excluding, as irrelevant, newspaper photograph and news item picturing and describing beginning of work on improved street held not error.

In abutting property owner's suit for damages from street improvement, excluding, as immaterial, evidence for defendant city relating to improvements and conditions on another street, held not error, especially since all similar evidence offered by plaintiff was ruled out for defendant.

In abutting property owner's suit for damages from street improvement, asking adjoining property owner, who had testified that improvement had increased her property in value, how much her claim against city for damages was and admitting her answer for sole purpose of impeaching witness, held not to require mistrial, although evidence was otherwise inadmissible.

Admitting plaintiff's testimony that plaintiff had never made case against defendant's witness, who testified that plaintiff had made case against her, held not prejudicial, since sustaining, rather than impeaching, witness' credibility.

Where trial judge stated, when testimony was admitted, that it was admissible for impeachment purposes only, repetition of statement in charge held not error.

Grounds not referred to in plaintiff in error's briefs will be treated as abandoned.

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. C. Savage, all of Atlanta, for plaintiff in error.

Mitchell & Mitchell, of Atlanta, for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

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 "need not necessarily be in front of, or contiguous to, the property claimed to be affected thereby, in order to authorize a recovery. It is sufficient if it is such an obstruction or interference as produces a diminution in the value of the property, as distinguished from mere personal inconvenience to the owner." 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 def...