City Of La Fayette v. Rosser

• Decision Date: 13 April 1936
• Docket Number: No. 25121.,25121.
• Citation: City Of La Fayette v. Rosser, 53 Ga.App. 228, 185 S.E. 377 (Ga. App. 1936)
• Parties: CITY OF LA FAYETTE. v. ROSSER.
• Court: Georgia Court of Appeals

53 Ga.App. 228

185 S.E. 377

CITY OF LA FAYETTE.

v.ROSSER.

No. 25121.

Court of Appeals of Georgia, Division No. 2.

April 13, 1936.

Syllabus by Editorial Staff.

Error from Superior Court, Walker County; Claude H. Porter, Judge.

Suit by J. E. Rosser against the City of La Fayette. To review the judgment, defendant brings error.

Affirmed.

S. W. Fariss, Jr., and G. W. Langford, both of La Fayette, for plaintiff in error.

Wright & Covington, of Rome, and Rosser & Shaw, of La Fayette, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. In this suit by a property owner against a municipality for the market value of a part of his land, taken in improving a street, the value of a shade tree on the property, and consequential damage to the remainder of the land, the verdict for $250 in favor of the plaintiff being authorized on the issues of ownership and the amount of damage, the general grounds of the motion for new trial as to those questions are without merit.

2. Exception is taken by the city to the exclusion of the following testimony, offered as material to establish a twenty-year prescriptive title in the city to the part of the lot alleged to have been taken: "Q. Do you know what the width of the street has been there at [the plaintiff's] place, or has the street been a uniform width throughout the entire street? A. Well, my understanding was that the street was straight and it would be that." Previously this witness had testified that he then lived on the street, and had lived there forabout forty-five years. He described the place where the street began and how it ran by his own place, stating: "At my house they laid off the sidewalks, and my sidewalk it was 40 feet, 30 feet from the street." Irrespective of whether or not a prescriptive title in the city could be established merely by testimony of general reputation, or by what a witness understood as to the curvature, crookedness, or straightness of street lines, the excluded testimony quoted failed to show in either the question or answer when or how long the street had been straight or of the uniform width contended, even if it be taken with the previous testimony of the witness, as above stated, that the width of the streets and sidewalks, as "they laid off the sidewalks" at his place, was the number of feet stated. All of such evidence failed to fix the time of such laying off. The exception to the exclusion of the question asked upon direct examination, "I will ask if you know by general reputation what the width of Cherokee Street was? " is without merit for the same reason; and for the additional reason that the ground fails to show that the expected answer of the witness was stated. City of Jackson v. Wilson, 146 Ga. 250 (4), 252, 91 S.E. 63; Allen v. Kessler, 120 Ga. 319 (1), 47 S.E. 900; Western & Atlantic R. Co. v. Waldrip, 18 Ga.App. 263 (3), 89 S.E. 346.

(a) Neither the excluded testimony nor any other evidence being sufficient to raise an issue upon the defendant's contention that the city had acquired a prescriptive title by twenty years' adverse possession of the land alleged to have been taken from the plaintiff, the court did not err in refusing to charge the defendant's requested written instructions relating thereto. Moreover, even if other evidence could be taken as sufficient to raise such an issue, the court in its general charge fully, fairly, and...