Mitchell v. The Mayor And City Council Of Rome

• Decision Date: 31 January 1873
• Citation: 49 Ga. 20
• Parties: DANIEL R. MITCHELL et al., plaintiffs in error. v. The MAYOR AND CITY COUNCIL OF ROME, defendant in error.
• Court: Georgia Supreme Court

49 Ga. 20

DANIEL R. MITCHELL et al., plaintiffs in error. v. The MAYOR AND CITY COUNCIL OF ROME, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

Prescription. Land. Municipal corporation. Streets. Joint tenants. Charge of Court. Presumptions. Before Judge Harvey. Floyd Superior Court. July Term, 1872.

Daniel R. Mitchell and Jesse Lamberth brought trespass against the Mayor and City Council of Rome for $2,000 00 damages, alleged to have been sustained by them from the cutting down and grading by the defendant of Etowa street, *below the foundation of the wall of their house, in the city of Rome, known as the "Buena Vista Hotel, " causing the said wall to fall, and thereby throwing down the ell of said building.

The defendant pleaded the general issue. The evidence made substantially the following case:

The original building, called the "Buena Vista Hotel, " was built by Francis Burke, in 1836 and 1837, upon the line of the lots, at the corner of Broad and Etowah streets—the basement then being five or six feet below the surface of the ground; it fronted on Broad street some fifty feet, and on Etowah street thirty-five or forty feet. The ell that fell was two stories high and about fifty-five feet long, fronting on Etowah street; was built in 1847, by J. J. Printup, and built on line of lot and street. The end of the ell is up to the old building, but the walls of the ell were not let into—not tied into—the old building, there being but a cross wall fifteen feet from the old building for the purpose of tying the long walls of the ell together. About the year 1850, Broad street was cut down and graded by the city authorities some six or eight feet, to the base or below the foundation of the said building. Some grading was also done at this time on Etowah street, but not so low as the foundation of the ell. From this time (1850) some three or four instances of digging ocurred up to the last in August, 1868, mainly on Etowah street. The wall of the ell fell on the night of the 13th of August, 1868. When the street hands were about to proceed below the foundation of said ell with their excavating, Mitchell protested, as he was fearful it would fall. He was assured by those in charge of the work and the chairman of the street committee that there was no danger, that as they went down they would make it perfectly safe by underpinning. He apprehended no danger until two or three years before the house fell, when, chancing to look at the wall, he discovered that it had leaned several inches towards Etowah street. He called the attention of several of the corporate officers to this, and especially that of Mr. Perry, the chairman of the street committee. *He could never understand what was the matter until after the ell fell. He had seen the street hands digging under the wall and filling in with brick, and supposed they were placing brick the entire width of the wall. After the wall fell, he discovered that the dirt had only been dug out nine or ten inches, and that the weight of the whole wall had been standing on a nine inch wall, which extended only about four feet below the foundation of the ell, for several years.

This excavation and underpinning took place sometime before Lamberth had any interest in the property, and at the time he purchased a half interest, in the fall of 1867 or spring of 1868, the wall was bowed out three or four inches. The street hands were at work on the day preceding the night when the ell fell. In August, 1868, the defendant had dug eight or ten inches below the foundation of the old building, and refused to underpin it. Plaintiffs hired hands to accomplish this end. They had been engaged at thiswork, under the superintendence of Lamberth, for several days before the wall fell. The job was finished on the evening before. The foundation of the ell was eighteen inches.

Considerable evidence was introduced on behalf of defendant, tending to show that the excavation beneath the wall, on the evening before it fell, was done under the direction and control of Lamberth, and that the agents of defendant were careful not to undermine said wall. This was denied by plaintiffs.

The evidence was also conflicting as to whether Lamberth, as a member of the City Council, had not moved to table the claim for damages when presented to that body for payment.

The jury returned a verdict for the defendant. Whereupon, the plaintiffs moved for a new trial upon the following grounds, to-wit:

1st. Because the verdict is contrary to the law and the evidence.

2d. Because the Court erred in charging the jury as follows: "The Mayor and City Council of Rome may grade down the street whenever, in their judgment, the public interest *requires, and go even to the line of the street, but they must do their work in a skillful and careful manner, so as to not unnecessarily endanger the property of contiguous land owners, and when the work they propose to do would probably endanger the property of such land owners, they must give the owner reasonable notice, so that he may take timely steps to secure his property, unless the facts show the contiguous property owners to have full and timely knowledge of their intended work, without formal notice. If all these precautions and conditions are observed, the city authorities are not liable to the owners of adjacent walls if they do fall, in consequence of digging down the streets; but if the damage is for want of an observance of these precautions and conditions, they are liable."

3d. Because the Court erred in charging the jury as follows: "What they (the City Council) do which appears to have been done in executing, or aiming to execute, their own business, it will be presumed to be done under order from the corporate authorities; what they do so far out of the line of their own business as to be evidently done in the execution of somebody else's job, if such owner was present and knew what was going on, and made no objection, will be presumed to be done by consent or direction of such property owner, if nothing appears to the contrary, but this presumption may be rebutted by any sufficient facts or circumstances, such as that the owner of the property protested against it, " etc.

4th. Because the Court erred in charging the jury as follows: "If the digging was done or any undermining attempted, or done under the plaintiffs' wall, who did it? The street hands or other persons employed by plaintiffs. If the street hands did it, by whose direction or what authority? If they did it without any other direction or authority than such as they received from the city authorities, the defendant is liable for any damage occasioned by it, but if they did it by any direction or authority of the plaintiffs, then the plaintiffs must bear the loss.'' 5th. Because the Court erred in charging the jury as follows: *"The plaintiffs had the right to insist that the city employees should perform skillfully and carefully what the city authorities undertook to do, but they had no right to insist that such employees should do anything that belonged to the plaintiffs to do, and if you believe, from the evidence, that there was any interference of this sort by the plaintiffs with the employees of the City Council, and that at the instance and with the knowledge of the plaintiffs, without the consent or direction of the city authorities, the city employees were induced to dig under or underpin the plaintiff\'s wall, and the damage ensued therefrom, then the City Council would not be liable."

6th. Because the principal of law of damnum absque injuria did not apply to this case, as the evidence proved that the ell had been built more than twenty years, and the owners, by prescription, had the right to the support of their wall by the adjacent earth, and the city authorities had no right to dig it away for any public purpose.

The motion was overruled, and the plaintiffs excepted upon each of the aforesaid grounds.

Underwood & Rowell; D. R. Mitchell, for plaintiffs in error.

Hamilton Yancey, for defendant.

Damnum absque injuria: 27 L. J. (N. S.) Q. B., 388. Power of corporation over streets: 28 Ga., R. 46; 23 Ibid., 404; 34 Ibid., 326; 6 Wheat, 597; Dillon on Mun. Corp., sections 524, 542; 1 Hill, 545; 33 Penn., 180; 6 W. and S., 101; 9 W. and S., 9; 6 Harris, 65; 14 S and R., 71; 6 Wheat, 45; 14 How., 80; 1 Penn., 467; Sher. & Red on Neg., 164; Angel on High., 236. Grigg v. Foote, 4 Allen, Mass., 195; Brown v. Lowell, 8 Met., Ibid., 172; Benjamin v. Wheeler, 8 Grey, Ibid., 409. Radclifi v. Mayor, etc., 4 Const., N. Y., 195; Wilson v. Mayor, etc., 1 Denio, Ibid., 595; Mills v. Brooklyn, 32 Ibid., 489. Green v. Reading, 9 Watts, Penn., 382; O\'Connor v. Pittsburg, 18 Ibid., 187. Hovey v. Mayor, *etc, 43 Me., 322. Hooker v. New Haven, 14 Conn., 146. Snyder v. Rockport, 6 Ind., (Port.,) 237. Roberts v. Chicago, 26 Ill., 249; Murphy v. Chicago, 29 Ibid., 279; Nevins v. Peoria, 41 Ibid., 502. Taylor v. St. Louis, 14 Mo., 20; Hoffman v. St. Louis, 15 Ibid., 651; St. Louis v. Gurno, 12 Ibid., 414. Humes v. Mayor, etc., 1 Humph., Tenn., 403. White v. Yazoo City, 27 Miss, 327. Reynolds v. Shreveport, 13 La., Ann, 426.

The defendants, in grading its streets, are bound only to furnish sufficient skill for the proper execution of its duties; they act in a public capacity, and, like other public agents, are not liable for the trespasses of its employees, done outside of their employment: Martin v. Mayor, etc., 1 Hill, 550; Bailey v. Mayor, etc., 3 Hill, 531; Harris v. Baker, 4 M. and Selw., 27; Hall v. Smith, 2 Bing., 156; Plate Glass Company v. Meredith, 4 T. R., 794.

Doctrine of prescriptive right. In Wyatt v. Harrison, 3 Barn, and Ad., 871, the Court say: "If I have laid an additional weight upon my land, it does not follow that one is to be deprived of the right of digging in his own ground because mine will thus become incapable of supporting the artificial weight which...