Mayor, etc., of Macon v. Daley
| Decision Date | 18 July 1907 |
| Docket Number | 399. |
| Parties | MAYOR, ETC., OF MACON v. DALEY et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The fact that a change in the grade of a street is made in conformity to an ordinance of a municipality acting in its legislative capacity does not prevent an abutting property owner from recovering consequential damages to such property resulting from said public work.
The Constitution of 1877 (paragraph 1, § 3, Bill of Rights) gives to the citizen the right to recover consequential damage to his property resulting from work of a public character although such work may be authorized by legislative action.
[Ed Note.-For cases in point, see Cent. Dig vol. 18, Eminent Domain, § 237.]
The constitutional provision referred to in the foregoing note limits the power of eminent domain in the state, and in counties and municipalities as the agents of the state. It is remedial in character, and for the purpose of giving property holders additional security, and should be liberally construed.
[Ed Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 174.]
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. On the trial of an action for the recovery of such damages, it is competent to prove the cost of the filing in of the property and raising it to the level of the street as a fact or circumstance illustrating the general question of market value.
Where the court instructed the jury fully, clearly, and correctly as to the measure of damages, there was no material error in failing to charge specifically that, in arriving at market value, any enhanced value of the property caused by the street improvement should be set off against any damages proved. In determining the question of market value, the jury necessarily would have to consider consequential enhancement as well as consequential damage.
No error of law was committed, and the verdict is amply supported by the evidence.
Error from City Court of Macon; Robt. Hodges, Judge.
Action by Janey Daley and others against the mayor and council of the city of Macon. Judgment for plaintiffs, and defendant brings error. Affirmed.
Minter Wimberly and Jesse Harris, for plaintiffs in error.
R. D. Feagin and Claud Estes, for defendant in error.
Plaintiffs in the court below brought suit against the mayor and council of the city of Macon for damages resulting to their property by the action of the city in raising the grade of the street on which said property was situated. The jury found a verdict for the plaintiffs, and the judgment of the court overruling the defendant's motion for a new trial brings the case to this court. It was admitted that the change of grade of the street in front of plaintiffs' property was in conformity to an ordinance of the mayor and council of the city of Macon in their legislative capacity; and it is therefore insisted that there is no liability for any consequential damages to said property caused by the change in the grade of the street. It is perfectly well settled that municipal corporations, acting under authority conferred by the Legislature, are not liable for consequential damages to abutting landowners arising from grading or changing the grade of streets, provided that in so doing they keep within the limits of the streets, and there is no physical invasion of the rights of private property, and reasonable care and skill are exercised in the performance of the work, unless there is some provision in the State Constitution, in the city charter, or in some statute creating such liability and, even where the Constitution contained the provision that private property should not be "taken" for public use without just compensation, it was uniformly held by the courts of the state and the United States Supreme Court that municipalities were not liable for consequential damages caused by an authorized change in the grade of a public street, where private property was not actually taken or there was no physical invasion of the property. The theory upon which these decisions was based was that the state had duly delegated to the municipality the power to make public improvements, and as long as the work was carried on within the scope of the authority thus delegated, and without negligence in the performance of the work, there would be no liability whatever damage occurred. "A citizen was thus left without protection in all that large class of cases done for the public benefit, or for a use public or quasi public, although no part of his tangible property was physically taken, the use or value of the property was palpably impaired, or was stripped of incidents comprised within the conception of complete property rights which brought to those rights quite as much value as the mere possession of property." Brown v. Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L.R.A. 161. This was a mischief for which a remedy was sought; and a most complete remedy was found in the constitutional provisions of many of the states. The state of Illinois was the pioneer in this measure of relief to the citizen. In 1870 that state inserted in its Constitution the provision that "private property shall not be taken or damaged for public use without just compensation." Many of the states followed the example thus set of a more liberal rule of protecting the citizen against public progress or improvement, and similar constitutional provisions were adopted. Where this special constitutional provision exists, the rule of municipal liability has been changed, and greatly enlarged. The courts have, without a single exception, held that although prior to these provisions a municipal corporation was under no liability to an adjoining abutting landowner for any damages sustained from the action of the city in grading or changing the grade of its streets, unless his property was actually invaded, under such provisions a city is liable to him for all direct and consequential damages resulting from changing the grade of the street, where the damage thus inflicted exceeded the...
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