Pause v. City of Atlanta
| Decision Date | 13 January 1896 |
| Parties | PAUSE v. CITY OF ATLANTA. |
| Court | Georgia Supreme Court |
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 146 S.E.2d 884
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 251 S.E.2d 546
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 308 F.Supp. 777
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 146 S.E.2d 884
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 251 S.E.2d 546
Syllabus by the Court.
1. A leasehold is such an estate as that if, in the construction by the municipal authorities of a city of a public improvement in one of its streets, the estate of one holding such an interest in real property be damaged, he may sustain an action.
2. The construction in a street by the municipal authorities of a city of any public improvement which results in permanent injury to the property of an abutting lot owner, gives to such owner a right of action for damages resulting to him therefrom.
3. Where, according to the plan of a proposed public improvement, its completion must inevitably result either in the total exclusion of a leaseholder from his premises, or render the same so inconvenient as to render it valueless to her for the purposes for which it is leased, she may abandon here lease, and vacate the premises, whenever, in the execution of the projected plan of construction, the work has so far progressed as virtually to destroy his lease, and thus prevent the enjoyment by him of his estate, and thereupon may sue for and recover from the city the diminution, during the remainder of his unexpired term, in the market value of the premises for rent, caused by the construction of such improvement.
4. In such case, neither the profits of the business carried on upon the premises so leased, nor the cost of fixtures or other improvements placed therein, nor of articles purchased for the purpose of enabling the lessee to conduct such business, nor the diminution in value of such fixtures improvements, or articles as are removed by the lessee from the premises upon leaving the same are recoverable as damages; but the increased value of the premises for rent in consequence of the putting in of such fixtures and improvements may be considered in computing the damages to the leasehold estate.
5. On the trial of such a case it is competent for the plaintiff to prove that the business in question was in fact profitable not for the purpose of recovering any loss in profits, but solely to illustrate and throw light upon the value of the premises for rent.
6. An "option" to extend for two years longer a valid three-years lease "at the mutual agreement of the parties to said lease," confers upon the lessee no legal right to hold the premises for a term longer than three years, and carries with it no right to recover for damages to the rental value of the estate after the expiration of that term.
Error from city court of Atlanta; Howard Van Epps, Judge.
Action by Emma Pause against the city of Atlanta. Judgment for defendant. Plaintiff brings error. Reversed.
Jno. C Reed and Mord Foote, Jr., for plaintiff in error.
J. A. Anderson and Fulton Colville, for defendant in error.
The plaintiff occupied certain premises in the city of Atlanta, which were used by her in the business of keeping a restaurant and bar, and selling fish and oysters. She occupied the premises under a lease at a stipulated monthly rental for an agreed term of three years, and upon an option, by mutual agreement of the lessor and lessee, to extend the same to a term of five years. Her place of business was well located, and properly fitted up at considerable expense. While engaged in the conduct of this business under the lease in question, the municipal authorities of the city of Atlanta commenced the construction of a certain bridge, in the building of which, under the plan adopted, the entrance to plaintiff's place of business would be, and was in fact, so far obstructed as practically to cut her off from the ordinary means of access to her place of business which she had previously enjoyed; and, in addition to this, cut off the light and air from her place of business, so as to render her premises practically valueless for the purposes for which they were leased. Before the day upon which the door of her place of business was actually obstructed by the progress of the contemplated work, here business, in consequence of the obstruction to the entrance of her restaurant became so unprofitable that she was compelled to abandon it, and to surrender the premises, in consequence of which she sustained damage. For the injuries thus sustained she brought an action; and upon the introduction of evidence, which, if admitted, might have justified the jury in finding the facts above stated to be true, she was nonsuited upon the ground that she had shown no right of action against the city. In addition to the question made upon the motion for nonsuit, the plaintiff offered to prove that she had made certain improvements upon the premises at a stated expense, and that in consequence of the injury complained of these improvements were depreciated in value, and further offered to prove the volume of her business, the profits derived from its conduct, the value of the movable property and loss on the same; all of which testimony was excluded by the court.
1. In the consideration of the questions made by the record in this case, for convenience of arrangement we will first address ourselves to the inquiry as to whether the plaintiff owned such an interest in the premises as would justify a recovery by her, admitting, for the purposes of that inquiry, that the municipal authorities were otherwise liable; and we think that this question may be answered in the affirmative upon authority of the ruling by this court in the case of Bentley v. City of Atlanta, 92 Ga. 623, 18 S.E. 1013, in which it is held "that a tenant, although he has no estate in the land, is the owner of its use for the term of his rent contract, and can recover damages for any injury to such use occasioned by the erection and maintenance of a public nuisance in the street adjacent to or in the immediate neighborhood of the premises." If a leasehold interest be sufficient to maintain such an action, it is certainly sufficient to maintain an action for damages sustained in consequence of torts directly affecting the value of the estate itself. A leasehold interest in premises for a definite term is property, within the meaning of that word as it is employed in paragraph 1, §3, art. 1, of the constitution of this state, in which provision is made against the taking or damaging of private property for public purposes without just and adequate compensation being first paid. If a tenant be deprived of his leasehold interest in consequence of the appropriation by the public to public uses of the property upon which his leasehold estate rests, it cannot be doubted that he is deprived of his property; and hence we conclude that the holder of a lease has such an interest in premises as will enable him to maintain an action for damages resulting to his leasehold estate sustained in consequence of the construction of a duly-authorized public improvement, whether such damage results from the negligence of the municipal authorities or otherwise.
2. The case of Tuggle v. Mayor, etc., 57 Ga. 114, was decided prior to the adoption of the constitution of 1877 and since, by the constitution of 1877; and since, by the constitution of 1868, there was no prohibition against mere damage to property within just compensation, the liability of the municipal corporation to an owner damaged in consequence of the construction of a bridge in a public street depended upon the question as to whether or not the municipal authorities were negligent, and, in consequence of their negligence, inflicted and injury upon the property owner peculiar to himself, and not shared in by the general public; and it was properly held, under the law as it stood at that time, that the action could not be maintained, it not appearing that the municipal authorities were in fact guilty of any negligence in the premises. The case of City of Atlanta v. Green, 67 Ga. 386, which was one involving the right of a property owner to recover consequential damages resulting from the change of a grade in a street, and as well the case of Campbell v. Railroad Co., 82 Ga. 320, 9 S.E. 1078, which involved the right of a street-railroad company to construct its railway along the line of the public streets of a city, both arose subsequent to the adoption of the constitutional provision hereinbefore referred to, as it appears in the present constitution of this state. In both of these cases it was ruled practically that, without reference to the question of negligence, if the city, in the progress of a public improvement, or the railroad company constructing its railroad under authority of a public charter, in any way damaged the property of a citizen, the latter, for such damages, might maintain an action. While it is perhaps unnecessary to cite authority for the proposition that an insertion of the words "or damaged" in the constitutional provisions above referred to was intended to and did afford to the private citizen an additional safeguard against the infliction of injuries by the public, it may not be unprofitable to refer to some outside authorities upon the subject, and we therefore cite in that connection the case of Rigney v. City of Chicago, 102 III. 64, which was afterwards cited approvingly in the case...
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