Mayor And Council Of Rome v. Omberg

• Decision Date: 31 March 1859
• Citation: 28 Ga. 46
• Parties: MAYOR AND COUNCIL OF ROME. vs. OMBERG.
• Court: Georgia Supreme Court

28 Ga. 46

MAYOR AND COUNCIL OF ROME. vs. OMBERG.

Supreme Court of the State of Georgia

MARCH TERM, 1859.

Case in Floyd superior court. Tried before Judge Hammond, February Term, 1859.

This was an action on the case brought by defendant in error against plaintiff in error, for digging and cutting down the street adjoining his lot, whereby his fence, erected upon the line of said street, had been undermined and thrown down. Damages laid at five hundred dollars.

The defendant pleaded the general issue and statute of limitations.

The plaintiff proved the cutting and excavation of the street by the City Council; and that it would cost about one hundred and twenty-five dollars to build a stone wall sufficient to prevent the wasting and crumbling away of the bank, and to secure the fence from being undermined.

Plaintiff having closed, counsel for defendant moved to dismiss the suit, on the ground that the defendant, being a municipal corporation, was not liable in this form of action.

The motion to dismiss was overruled, and defendant excepted.

Defendant then proved that the Presbyterian Church commenced the excavation on this street in 1849; that they were notified by defendant to stop, which they did, but not until they had excavated one-third the length of plaintiff's lot. This left the street in an impassable condition, and in 1851, the grading and excavation was continued, in order to render the street passable—worked atthis excavation again in 1854, but at this time did nothing more than was necessary to put that street in good order, as would have been done on any other street in like condition.

The court charged the jury, "that if the injury complained of had occurred within four years from the commencement of the action, and they should believe that it resulted from the act of the defendant, then the plaintiff was entitled to recover whatever damages he had proved; and in making up their verdict, they must calculate, not from the time the excavation was made, but from the period the injury occurred, in order to determine the question of the statute of limitations."

The jury found for the plaintiff one hundred and twenty-five dollars, and defendant excepted, and assigned for error:

1st. The decision of the court overruling defendant's motion to dismiss the case.

2nd. The charge aforesaid of the court.

3rd. That the verdict was contrary to law and the evidence, and the damages excessive.

T. W. Alexander, for plaintiff in error.

Underwood & Smith, contra.

By the Court.—Lumpkin, J., delivering the opinion.

The question involved in this case is one of great practical importance, and I confess my convictions are not so strong as 1 could wish them to be.

It is not denied that the Mayor and Council had authority to grade the streets of the city of Rome. There is no excess of authority charged. In the exercise of this acknowledged right, is the city which they represent to be assessed with damages for digging so near defendant's lot that the earth which supported, afterwards crumbled away and his fence fell?

It cannot, we think, with any propriety be contended that this is taking private property for public use. They were simply using their own property for the purpose for which it was appropriated, by reason of which this consequential damage resulted to the plaintiff.

This question has been mooted both in England and in this country, and there are strong precedents in both against the claim here set up. (See 24 Geo. Rep. 402, and the...