Gaines v. City Of Calhoun

• Decision Date: 26 September 1930
• Docket Number: No. 20127.,20127.
• Citation: 42 Ga.App. 89,155 S.E. 214
• Parties: GAINES. v. CITY OF CALHOUN.
• Court: Georgia Court of Appeals

42 Ga.App. 89

155 S.E. 214

GAINES.

v.CITY OF CALHOUN.

No. 20127.

Court of Appeals of Georgia, Division No. 2.

Sept. 26, 1930.

Syllabus by the Court.

Where a municipal corporation, through a contract awarded by it and a contractor selected and paid for by it, performs work in grading one of its streets, although the state highway department, under an agreement with the municipality, agrees to pay to it a part of the cost of the work, and the work is to be performed under an engineer satisfactory to the state highway department, appointed by the municipality, whose plans and specifications must meet with the approval of the state highway department, which is to in spect the work "only in a general way to see that the plans and specifications are complied with, " the municipality in performing the work is, as respects the state highway department, an independent contractor, and the municipality, and not the state highway department, is responsible for any damage to property abutting on the street which results from the performance of the work. This is true notwithstanding the street may have become a "state-aid road, " as provided in 12 Park's Code Supp. 1926, § 828(ppp), provision 5, Michie's Code 1926, §§ 828(18), 828(19).

Syllabus by the Court.

Where an unimproved tract of land has been platted and subdivided into a series of contiguous lots, each of fixed dimensions having a specified frontage upon a street, each lot having a value which is not dependent upon its being a constituent element of the tract of land formed by the lots in the aggregate, the lots taken in the aggregate do not necessarily constitute such an entire tract of land as that the owner thereof cannot, without reference to the benefits which may have accrued to the entire tract consisting of the lots in the aggregate, recover damages accruing to a particular lot by virtue of public work done in the street. It is ordinarily a question of fact for a jury as to what constitutes an entire tract of land for the purpose of assessing damages caused from acts affecting any part of the land.

Syllabus by the Court.

In a suit by the owner of land which has been platted and subdivided into building lots, to recover damages to only a portion of the lots, resulting from public work, where it appears, without more, from the evidence, that the owner has platted and subdivided the land into building lots, prima facie each of the lots alleged to have been damaged is, for the purpose of assessing damages to any one of them re-suiting from the work, a separate and distinct tract of land, and damages to the lot, as a result of the work, are assessable without reference to the effect of the work upon the value of the remaining lots, or of the lots in the aggregate taken as constituting an entire tract of land.

Error from Superior Court, Gordon County; C. C. Pittman, Judge.

Suit by Mrs. Nannie C. Gaines against the City of Calhoun. To review a judgment of nonsuit, plaintiff brings error.

Reversed.

P. A. Cantrell, of Calhoun, and M. B. Eubanks, of Rome, for plaintiff in error.

Y. A. Henderson, of Calhoun, for defendant in error.

STEPHENS, J.

Mrs. Nannie C. Gaines sued the city of Calhoun for damages alleged to have been sustained by her in the depreciation of the market value of eight building lots, each being 25 by 129 feet, as a result of the raising of the grade of a street abutting these lots. Upon the trial of the case there was evidence as to the size and value of each lot both prior and subsequent to the execution of the work in the street. It also appeared from the evidence that at the time of the execution of the work the plaintiff was the owner of eight other building lots, each of about the same dimensions as the lots referred to in the petition, abutting upon the same street, and, in connection with the lots referred to in the petition, constituted a tract of land subdivided into a series of lots each of which abutted upon another; but it did not appear from the evidence that the value of any of the eight lots not referred to in the petition was in any wise affected, either by enhancement or depreciation, by the execution of the work. There was no evidence as to the adaptability of all the lots in aggregate for any purpose other than the separate adaptability of each lot as a building lot. It further appeared from the evidence that the work was done under a contract awarded by the city of Calhoun and through a contractor selected and paid by the city; that there was an agreement between the city of Calhoun and the state highway department that the work was to be done under an engineer satisfactory to the state highway department but appointed by the city, whose plans and specifications must have been approved by the state highway department; that the state highway department was to pay the city of Calhoun part of the cost of the work; and that the work was to be performed with the approval of the state highway department, which was to inspect the work "only in a general way to see that the plans and specifications are complied with." A nonsuit was granted, and the plaintiff excepted.

1. Where a municipal corporation undertakes to grade one of its streets through a contractor selected and paid for by it, although the state highway department, under an agreement with the municipality, agrees to pay to the municipality a part of the cost of the work, and the work is to be performed under an engineer satisfactory to the state highway department, appointed by the municipality, whose plans and specifications must meet with the approval of the state highway department, and the state highway department is to inspect the work "only in a general way to see that the plans and specifications are complied with, " the municipality, in performing the work, is, as respects the state highway department, an independent contractor, and not the agent of the state highway department. This is true irrespective of whether the portion of the street graded, within the limits of the municipality, had become a "state-aid road" in a town or city having no more than 2, 500 inhabitants, as provided in 12 Park's Code Supp. 1926, § 828 (PPP). provision 5, Michie's Code 1926, §§ 828(18), 828(19). Where the owner of property abutting upon the street so graded by the municipality sustains damage to the value of his property by virtue of a change in the grade of the street made by the municipality in accordance with the plans and specifications prescribed by the state highway department, the municipality is not relieved of liability to the property owner for the damage thus sustained by reason of the fact that the damage resulted from a grade in the street made in accordance with the plans and specifications prescribed by the state highway department.

2. It is well settled that, where a tract of land having a value and a peculiar utility as an entirety is affected by public work, the owner of the land, for the purpose of recovering damages resulting from the performance of the work, cannot sever from the entire tract a portion of it which has been peculiarity damaged and recover damages without reference to the benefits accruing to the entire tract by virtue of the performance of the work. This is upon the theory that the tract as an entirety possesses a value determinable by its particular adaptability for use as one and an entire tract, and that the value of any particular portion of the tract is dependent upon its being incorporated in the whole tract and not as constituting a separate entity, as where the tract in its entirety is adaptable to use as a site for a factory, hotel, farm, etc., and to which an individual lot carved out of the tract is not adaptable. Potts v. Penn. S. V. R. Co., 119 Pa. 278, 13 A. 291, 4 Am. St. Rep. 646; Port Huron, etc., R. Co. v. Voorheis & Marx, 50 Mich. 506, 15 N. W. 882; Mix v. La Fayette, etc., R. Co., 67 Ill. 319; St. Louis, etc., R. Co. v. Aubucbon, 199 Mo. 352, 97 S. W. 867, 9 L. R. A. (N. S.) 426, 116 Am. St. Rep. 499, 8 Ann. Cas. 822; Sheldon v. Mpls. & St. L. R. Co., 29 Minn. 318, 13 N. W. 134; Cameron v. Chicago, etc., R. Co., 42 Minn. 75, 43 N. W. 785; Driver v. Western Union R. Co., 32 Wis. 569, 14 Am. Rep. 726; Kansas City R. Co. v. Norcross, 137 Mo. 415, 38 S. W. 299; Leavenworth, etc., R. Co. v. Wilkins, 45 Kan. 674, 26 P. 16; 57 L. R. A. 932, note.

Where the entire tract has no adaptability peculiar to itself as an entirety, and can be subdivided without injury to its adaptability for use as an entire tract, and the value of a particular subdivision thereof is not dependent upon its being incorporated in the tract as part of the entity, as...