Harbour v. City of Rome

• Decision Date: 09 July 1936
• Docket Number: 25414.
• Citation: 187 S.E. 231,54 Ga.App. 97
• Parties: HARBOUR v. CITY OF ROME.
• Court: Georgia Court of Appeals

187 S.E. 231

54 Ga.App. 97

HARBOUR v. CITY OF ROME.

No. 25414.

Court of Appeals of Georgia

July 9, 1936

Rehearing Denied July 23, 1936.

Syllabus by the Court.

1. An action against a city by reason of a change in the grade of a street whereby the abutting property is diminished in its market value does not sound in tort, and the right of action does not abate by the death of the property owner before the bringing of the suit thereon, if such action is brought by the legal representative of the owner within the statute of limitations.

2. The petition as a whole set out a cause of action, and the court erred in sustaining the general demurrer.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Action by Raymond Harbour, administrator of the estate of Moss Harbour, deceased, against the City of Rome. Judgment for defendant, and plaintiff brings error.

Reversed.

BROYLES C.J., dissenting.

Maddox & Griffin, of Rome, for plaintiff in error.

W. B Mebane, and Maddox, Matthews & Owens, all of Rome, for defendant in error.

GUERRY Judge.

Raymond Harbour, as administrator of the estate of Moss Harbour deceased, brought this action against the city of Rome alleging that the deceased was in his lifetime the owner of certain property in the city of Rome; that Moss Harbour died in January, 1934; that in 1932 the city of Rome "raised the street and sidewalk in front of the property approximately two feet," causing water to pond on the property; "that on account of the facts set forth the value of said lots has been decreased in the sum of $1,000." There follows a recital of particular damage because of consequent rotting of floors and foundations to houses on said lots and loss of rents and the negligence of the city in failing to put in drains.

A general demurrer to this petition was sustained. The demurrer pointed out that the acts alleged occurred prior to the death of the intestate and that any cause of action abated with his death. It becomes necessary in passing on this phase of the case to determine whether or not the action sounds in tort. A cause of action ex delicto, where no suit has been filed by the injured party, will abate with his death. See Code 1933, § 3-505; Frazier v. Ga. R. R. & Banking Co., 101 Ga. 77, 28 S.E. 662; King v. Southern Ry. Co., 126 Ga. 794, 798, 55 S.E. 965, 8 L.R.A. (N.S.) 544; Southern Bell Tel. & Teleg. Co. v. Cassin, 111 Ga. 575, 581, 36 S.E. 881, 50 L.R.A. 694; Peebles v. C. & W. C. R. Co., 7 Ga.App. 279, 66 S.E. 953. Some parts of the present petition may be construed as an action for damages for a continuing abatable nuisance, and as such sounds in tort, and there would be no error in sustaining a general demurrer of the character filed in this case were the whole petition predicated on that kind of damages. There is an allegation in the petition setting out that, by reason of a change in grade of the street fronting on this property, its market value was decreased in the sum of $1,000. "Where a petition is ambiguous in failing to make clear whether the cause of action and remedy relied on is in contract or in tort, generally it will be construed as claiming damages for the tort. But in the absence of special demurrer, where the facts alleged will support either of the forms of action, the courts will presume that the pleader's purpose was to serve his best interest, and will so construe the pleading as to uphold and not to defeat the action." Monroe v. Guess, 41 Ga.App. 697, 154 S.E. 301. Under the Constitution of this state, article 1,§ 3, par. 1, "private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid." Prior to the Constitution of 1877, only the "taking" of private property was compensable. Mayor and Council of Rome v. Omberg, 28 Ga. 46, 73 Am.Dec. 748; Markham v. Atlanta, 23 Ga. 402; City of Atlanta v. Green, 67 Ga. 386. Under the provisions of our present Constitution, private property may not be taken nor damaged without just compensation being paid. See City of Atlanta, v. Green, supra.

In City Council of Augusta v. Lamar, 37 Ga.App. 418, 140 S.E. 763, 764, it is said: "In such a case, that is, where the public authorities properly erect and properly maintain the improvements authorized by law, an action in tort is not maintainable by the owner of damaged property on the theory that the act of the public authority amounts to the maintenance of a continuing, abatable nuisance, such as would authorize periodical recoveries for subsequently accruing consequential damages, since 'that which the law authorizes to be done, if done as the law authorizes it to be done, cannot be a nuisance.' Burrus v. Columbus, 105 Ga. 42, 46, 31 S.E. 124, 125; Bacon v. Walker, 77 Ga. 336; Farkas v. Towns, 103 Ga. 150, 156, 29 S.E. 700, 68 Am.St.Rep. 88; Towaliga Falls Power Co. v. Sims, 6 Ga.App. 749, 754, 65 S.E. 844; Sheppard v. Ga. Ry. & Power Co., 31 Ga.App. 653, 656, 121 S.E. 868. In such a case, the only right of action which is maintainable is that conferred by the quoted provision of the Constitution. It does not sound in tort, and the recovery permitted is strictly limited to the direct damage inflicted by diminishing the market value of the property damaged, as measured by the difference in its market value before and immediately after the construction of the public works, excluding all consequential damages subsequently accruing, such as might be recoverable in an action sounding in tort, based on the maintenance of a continuing, abatable nuisance." See, also, Bibb County v. Green, 42 Ga.App. 552, 156 S.E. 745. In City of Atlanta v. Atlas Realty Co., 17 Ga.App. 426, 87 S.E. 698, it is said: "Where a change is made by a municipality in the grade of a street, and the market value of real property abutting thereon is thereby decreased, under the provisions of article 1, § 3, par. 1, of the Constitution (Civil Code 1910, § 6388), the owner has a cause of action against the municipality. City of Atlanta v. Green, 67 Ga. 386, 388; Moore v. Atlanta, 70 Ga. 611; Mayor, etc., of Macon v. Daley, 2 Ga.App. 355, 359, 58 S.E. 540, and cases there cited." See, also, City of Atlanta v. Dinkins, 46 Ga.App. 19, 166 S.E. 429. "The measure of damages to abutting property caused by raising the grade of a street is the difference between the market value of the property before and after the change of the grade." Mayor, etc., of Macon v. Daley, 2 Ga.App. 355, 356, 58 S.E. 540.

Decrease in rental value may be set up as a circumstance tending to show a diminution in the market value, but is in itself no basis of recovery in such a suit. City of Atlanta v. Atlas Realty Co., supra. Likewise the cost of filling in lots to raise them to the level of the street may be shown, not as an independent item of special damage, but as a circumstance illustrating diminution of market value (Williamson v Savannah, 19 Ga.App. 784, 92 S.E. 291); the difference between the market value before the change and after the change being the true measure of damage (Howard v. County of Bibb, 127 Ga. 291, 56 S.E. 418; Smith v. Atlanta, 22 Ga.App. 511, 96 S.E. 334). In the present action, the change of grade of the street abutting on plaintiff's intestate's property is alleged, and ensuing injury or damage to...