Harvey v. Ga. Southern & F. R. Co

• Decision Date: 22 August 1892
• Citation: 90 Ga. 66,15 S.E. 783
• Court: Georgia Supreme Court
• Parties: Harvey v. Georgia Southern & F. R. Co. et al.

15 S.E. 783

90 Ga. 66

Harvey

v.Georgia Southern & F. R. Co. et al.

Supreme Court of Georgia.

Aug. 22, 1892.

Railroad Companies — Unlawful Obstruction of Alleys—Injunction—Special Damages.

1. The owner of a business stand abutting upon a public alley sustains special damage, — that is, damage not shared in by the public at large, —if, by the illegal obstruction of the allay, customers are prevented from having and using the same as a means of access to the stand, for the purposes of trade, as they have been habitually doing for many years previously.

2. It is no answer to this grievance by a railroad company unlawfully obstructing the alley that new and increased custom will result to the plaintiff's business by reason of the obstruction itself, (the same being a depot to be placed across the alley,) and other improvements which will be erected by the company at and near the point where the depot is to be located and maintained; nor can any increase in the value of the plaintiff's property, anticipated as a probable effect of the company's new improvements and works, be taken into the ac-count as a set-off against injury to business. Wood, Nuis. § 864, p. 894.

3. The court erred in charging the jury in conflict with the principles above announced; the company having admitted at the trial that it claimed no authority of law for closing the alley, and that closing the same was a nuisance.

4. No ruling is made as to the act of October 15, 1891, (pamphlet, p. 446;) the same not having been referred to in the pleadings, by amendment or otherwise, nor, so far as appears, insisted upon in the court below.

(Syllabus by the Court.)

Error from superior court. Bibb county; A. L. Miller, Judge.

Suit by James Harvey, trustee, against the Georgia Southern & Florida Railroad Company and others, to enjoin the obstruction of a certain alley. Judgment for defendants. Plaintiff brings error. Reversed.

The following is the official report:

The petition of Harvey et al., owners of a store and dwelling houses at the corner of Fourth street and a 20-foot alley, prayed for injunction against the obstruction by the defendant corporations of the alley, where it divides two city lots owned by them, these two lots being between Fifth street and the lot in which is situated the property of the plaintiffs. A temporary injunction was granted, with allowance to the defendants to lay railroad tracks across the alley, and the judgment was affirmed. 84 Ga. 372, 10 S. E. Rep. 971. The petition contained a prayer for money damages for the time the alley had been kept closed by the defendants; and, when the case came on for trial before a jury, this prayer was stricken by amendment, leaving only the prayer for permanent injunction. The defendants' counsel admitted that they had no authority of law for closing the alley, and that closing it was a nuisance; but they claimed that the plaintiffs suffered no such special damage as entitled them to the injunction asked for. After the introduction of evidence, the court submitted to the jury to find whether the closing of the alley, as proposed by the defendants, would cause special damage to the business and property, or business or property, of the plaintiffs. The jury found it would not, and the court entered a decree denying the permanent injunction. To this decree, and to the overruling of a motion for a new trial, the plaintiffs excepted. The petition alleged that, when the plaintiffs purchased their property, they purchased an easement in the alley, and have occupied and used it in conjunction with other citizens for years, paying a good round price for it; for, when the property was purchased, many hundred dollars more were paid for it than adjoining property of the same size could be bought for, on account of this alley privilege, which made their property especially valuable, owing to the open thoroughfare, which is the direct line of travel for a large number of customers who have been in the habit of trading in the store, etc., and who live on Fifth street and other parts of the city east of their property; that the vast bulk of the trade of the store, which goes to the support of the petitioners, and renders their property valuable, comes from the vast number of people who have homes east of it on Fifth street and adjoining alleys, who have for years been in the habit of using this alley as a thoroughfare to the store, and that from this source and from this cross street great volumes of trade have for years come to their property, so that, for a small stand, there is no more valuable business property in the city, but that if this cross street is permitted to be closed the vast bulk of trade will be cut off from the storehouse, their natural ingress to and egress from the same being destroyed, and the same will be driven to other stores, and the value of their property thus greatly and permanently injured. The defendants' answer alleged that the plaintiffs' lot has no peculiar value on account of being located on the alley; that every lot as originally laid out, in the city, had an alley appurtenant to it; that the plaintiffs have no easement or interest in the alley; that it has been closed for years, on the opposite side of Fifth street from defendants' property, by the Central Railroad, and many similar alleys elsewhere in the city have been allowed to he closed by the abutting property owners; that defendants' business demands depot building. of such length as to extend across the alley, and it is impossible to build a depot on either of the two lots alone; and that the proposed occupation of the alley will not in any manner affect the value of plaintiffs' property, but on the contrary all property in that portion of the city has increased in value since it has become generally known that defendants intended to locate their offices and depots there, and plaintiffs' property is to-day worth more by reason of the contemplated location of defendants' depot than it was before said property was purchased by defendants, for this reason.

The motion for a new trial contains 27 grounds. Besides those alleging that the...