Moore v. City Of Atlanta

• Decision Date: 28 February 1883
• Citation: 70 Ga. 611
• Court: Georgia Supreme Court
• Parties: Moore. vs. City of Atlanta.

70 Ga. 611

Moore. vs. City of Atlanta.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

Municipal Corporations. Damages. Constitutional Law. Streets. Injunction. Before Judge Hammond. Fulton Superior Court. September Term, 1882.

Reported in the decision.

Candler & Thomson, for plaintiff in error.

W. T, Newman, for defendant.

Jackson, Chief Justice.

This bill was brought by the complainant against the city of Atlanta to enjoin the municipal authorities from grading a street in front of the residence of the complainant, on the ground that the grade had been fixed by the city some years ago; that complainant had neglected to record it pursuant to law, but had acted upon it as fixed; had planted shade trees on the sidewalk, which had become of great value, and would be destroyed if the new grade proposed was carried out; that it was projected nowin the interest of certain persons owning property in the neighborhood; that there was really no necessity for it, and that its result would work irreparable injury and damage to the complainant. The injunction was refused by the chancellor, and the complainant excepted.

We have held up this case for some time, with a view to look closely into the bearing which the constitution of 1877, and the dcision of this court thereunder in the case of The City of Atlanta vs. Green, made at the September term, 1881, and not yet reported, ^* might have on the law of the case. Outside of that bearing, the case would have given us comparatively little trouble.

1. The act of the general assembly which gave complainant the right to have a permanent grade, made, as a prerequisite to its value as vesting a right in him, that it be filed for record. Acts of 1871-2, p. 301. Complainant admits that he did not record or file the grade which he procured to be given him as permanent in 1878, and therefore acquired no right under it; nor could he, under that act, recover damages from the city, much less enjoin it from grading the streets, so far as that act confers rights upon him.

2. Nor does complainant give any reason for failure to record the permanent grade, alleged to have been given him by Mr. Bass the city engineer in 1S73; but " from ignorance or inadvertence, " it was not filed for record. Ignorance of the law and inadvertence, both or either, do not commend a complainant who seeks relief in a court of law or equity; never in a court of equity, where the strong arm of injunction, which courts of equity alone can use, is invoked by the suitor.

3. Therefore the rights of complainant must rest on the constitutional provision of the convention of 1887. That provision is that, " Private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid." Art. 1, sec. 3, par. 1; Code, §5024.

In the case of The City of Atlanta vs. Green, supra, itwas held that this constitutional provision was applicable to cased of injury or damage to property caused by grading the streets, without reference to the point whether or not the act of 1871, in regard to permanent grades previously granted and recorded, was complied with, and the effect of not recording. It was ruled there distinctly, and it is now well settled law in this state, that If any owner of property be damaged by the grading of a street, so as to lessen the pecuniary value of his property, he may recover damages for such injury to his freehold. That damage will be measured by the decrease in the actual value of his property. If the value pecuniarily be not decreased, he can recover nothing. If it would have been decreased in value as a mere residence, without regard to the improvement of access made by the grade of the street, and yet this improvement and the increased value thereby produced equaled the inconvenience or discomfort of the home as a mere residence, then the one could be set off against the other, and no recovery could be had. In other words, the right of recovery would turn in each case on the diminution in the pecuniary or market value of the property caused by the grade.

Weighed in these scales, how will the case at bar stand on the mere question of damage Will the complainant's property be decreased in value, and if so, how much? That much, little or large, he will be entitled to recover at law under the ruling in the case of Atlanta vs. Green, before cited.

4. But the stoppage of all the improvements of the city by the...