Roughton v. City Of Atlanta

• Decision Date: 20 July 1901
• Citation: 113 Ga. 948,39 S.E. 316
• Parties: ROUGHTON. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

39 S.E. 316

113 Ga. 948

ROUGHTON.

v.CITY OF ATLANTA.

Supreme Court of Georgia.

July 20, 1901.

CITY STREETS—CHANGE OF GRADE—DAMAGE'S —TORTS OF SERVANTS.

1. When a city, in the exercise of its corporate powers, changes the grade of one of its streets, and as a result the premises of an adjoining lot owner are rendered less valuable, he is entitled to just compensation for the injury thus sustained; the measure of damages being the diminution in the market value of his property.

2. A municipality is not, however, in such a case, liable in damages for tortious acts of its servants which are not proximately connected with the work incident to the making of the public improvement.

(Syllabus by the Court.)

Error from city court of Atlanta; A. E. Calhoun, Judge.

Action by J. P. Roughton against the city of Atlanta. Judgment for defendant, and plaintiff brings error. Reversed.

Roughton sued the city of Atlanta, alleging, in substance, in his petition that the defendant had damaged him by reason of the following facts: On a given day the defendant changed the grade and filled in on a designated public street in its charge and control in the city, on which was the plaintiff's lot, where he resided, and it made a fill on the front end of his lot and fence about 4 feet, and damaged the lot and fence in a sum stated; and, having made the fill, the defendant undertook to "jack up" his house to come above the fill, and did so, about 4 or 5 feet, so that the house was about 11 or 12 feet from the ground in the rear of it In raising the house the timbers in It were torn loose and disturbed, the plastering broken, and the roof made to leak, whereby the house was damaged in a stated sum. The making of the change in the lot and the house rendered the place unfit for occupancy as a home, and its rental value was thereby destroyed, thus damaging him in a sum stated. To the allegation that the defendant undertook to jack up the house, etc., the plaintiff added, by amendment, that the defendant entered on his premises and undertook to do this without his knowledge or consent He alleged also, by amendment, that the defendant ratified and adopted as its own the acts of its agents and employes in raising the house, after it was done, and by so ratifying became liable to pay all damages arising therefrom; also that it ratified these acts by paying for them. To the petition as amended the defendant demurred generally, and the court dismissed it, assigning as the reason for dismissal that it set forth no cause of action, because the acts complained of were ultra vires.

H. M. Patty, for plaintiff in error. J. A. Anderson.

J. T. Pendleton, J. L. Mayson, and W. P. Hill, for defendant in error.

LUMPKIN, P. J. The sole question which this case presents for determination is whether or not the petition filed by the plaintiff was capable of withstanding a general demurrer. We hold, without hesitation, that it was.

1. If, as alleged, the city undertook to change the grade of one of its streets by making "a fill on the front end of plaintiff's lot, " and as a consequence his fence was damaged and his...