Sheppard v. Georgia Ry. & Power Co.

• Citation: 121 S.E. 868,31 Ga.App. 653
• Decision Date: 25 February 1924
• Docket Number: 14373.
• Parties: SHEPPARD ET AL. v. GEORGIA RY. & POWER CO.
• Court: Georgia Court of Appeals

121 S.E. 868

31 Ga.App. 653

SHEPPARD ET AL. v. GEORGIA RY. & POWER CO.

No. 14373.

Court of Appeals of Georgia, Second Division

February 25, 1924

Syllabus by the Court.

This action, properly construed, was one wherein the plaintiffs sought to recover for damage to their property, resulting from the act of the street railway company in changing the grade of the street while laying its tracks thereon in the proper exercise of the conferred right of eminent domain. In such a case the right of recovery accrues under that provision of the Constitution which declares that private porperty shall not be taken or damaged for public purposes without just and adequate compensation being first paid ( Mayor of Albany v. Sikes, 94 Ga. 30 [1], 20 S.E 257, 26 L.R.A. 653, 47 Am.St.Rep. 132), and the measure of damages is the difference in the market value of the property before and after the change in the grade (City of Atlanta v. Green, 67 Ga. 386 [3]; Smith v. Floyd County, 85 Ga. 420 [3], 11 S.E. 850). When this work was done and damage resulted therefrom to the plaintiffs, they had a right of action for damages, not only for that which might have accrued prior to the bringing of the action, but for such as might accrue in the future. However, "the whole damage could have been assessed in one action; such action taking the place of the statutory provision in cases where property is condemned, that the whole damage shall be assessed. * * * The authorities are numerous that such an action must be brought within the statutory period, for all the damages, both past and future; and the plaintiff having failed to bring suit within that time, her right of action was barred. * * * As there was no original nuisance, there could be no continuing nuisance." Atkinson v. City of Atlanta, 81 Ga. 625, 7 S.E. 692.

The only damage recoverable in this case accrued more than four years before the filing of the action, and therefore was barred by the statute of limitations, which the defendant pleaded. The case is here upon exceptions by the plaintiff to the action of the trial court in dismissing the suit at the close of the evidence by an order in the nature of a nonsuit. The statute of limitations is properly invoked by a demurrer or special plea, and not by a motion for a nonsuit, though where a nonsuit is granted upon that ground, and the proper result is attained, the nonsuit will not be reversed merely because of the adoption of the improper practice, where the judgment is not assigned as erroneous for that reason. Small v. Cohen, 102 Ga. 248 (3), 29 S.E. 430; Poole v. Trimble, 102 Ga. 773, 775, 29 S.E. 871.

Additional Syllabus by Editorial Staff.

The Court of Appeals will take judicial cognizance that the charter of the Georgia Railway & Power Company, as granted by the Secretary of State June 16, 1911, conferred authority to lay its tracks longitudinally upon Roland avenue in the municipality of Clarkston.

Error from City Court of Decatur; W. R. Daley, Judge.

Action by John Sheppard and others against the Georgia Railway & Power Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Etheridge Sams & Etheridge, of Atlanta, for plaintiffs in error.

Colquitt & Conyers, of Atlanta, for defendant in error.

BELL J.

This was an action by the owners of realty abutting upon Roland avenue in the city of Clarkston, in the county of De Kalb against the street railway company for damage alleged to have been sustained by reason of the increase of the elevation of the street by the company in the construction of its railway track. Plaintiffs alleged that the change in the grade of the street interfered with and stopped the natural drainage and flow of surface water over the plaintiffs' land, causing it to back over a large area to a depth of 12 inches "after each large rain," and that "the banking and standing of said surface water has rendered petitioners' land unfit for cultivation," which previously was dry and tillable, producing annual crops of a stated value. The prayer was to recover the net value of the annual crops alleged to have been lost because of the above-described condition during four years next prior to the filing of the suit, and also a stated sum as the resulting diminution in the market value of the land. The petition contained the allegation:

"That in constructing said track said defendant changed the level or grade on said street by filling in parts of said street several feet to facilitate the construction and operation of its car line." (Italics ours.) There is no averment that the change in the grade of the street was executed in a negligent, unskillful, or improper manner, or that the defendant was not acting by authority of law. The defendant filed a general denial and specially pleaded the statute of limitations. The bill of exceptions brought by the plaintiffs recites that at the close of the plaintiffs' evidence "counsel representing the defendant moved that the case be dismissed, in the nature of a nonsuit, on the ground that the statute of limitations controlled the case and that the case was barred, it not having been brought within four years after the alleged nuisance was committed," and that thereupon the court passed the order of dismissal, which is assigned as error.

1. This court will take judicial cognizance of the fact that the charter of the defendant, Georgia Railway & Power Company, as granted by the Secretary of State on June 16, 1911, conferred authority to lay its tracks longitudinally upon Roland avenue in the municipality of Clarkston. Robertson v. Tallulah Falls Railway Co., 29 Ga.App. 530 (3), 116 S.E. 65. This right, however, under the Constitution of this state, could not be exercised without the consent of the municipality. Civil Code 1910, § 6448; Almand v. Atlanta Street Railway Co., 108 Ga. 417 (1), 425, 34 S.E. 6. The track was laid in 1913. The present action was filed in 1921. There was no evidence to show that the consent of the municipality had not been granted. Neither was there evidence that it had ever objected to the laying of the track. Indeed, one of the witnesses introduced by the plaintiff, who was a member of the town council at the time the tracks were laid and the street grade changed, testified, without objection and without dispute, that the town council "had the railroad to grade that street." The charter of the municipality as it then existed (Ga. L. 1898, pp. 165, 168, § 10) gave power to the municipal authorities "to keep in good order and repair all streets * * * and to extend and lay out streets and regulate the width and length of same." Incident to this power was that of grading and otherwise improving the streets. Mayor & Council of Brunswick v. King, 91 Ga. 522, 524, 17 S.E. 940. See, also, Atlanta Railway & Power Co. v. Atlanta Rapid Transit Co., 113 Ga. 481, 484, 39 S.E. 12; Atlanta & West Point R. Mo. v. Atlanta, Birmingham & Atlantic R. Co., 125 Ga. 529, 545, 54 S.E. 736. In view of the testimony just quoted and the plaintiffs' averment that the defendant "changed the level or grade * * * to facilitate the construction and operation of its car line," considered in connection with the charter power both of the defendant street railway company and of the municipality, it must be also presumed, nothing appearing to the contrary, that such change in grade was necessary to a proper and reasonable exercise of the defendant's franchise, and was made by the authority of the municipality and in a proper manner.

"It is to be presumed, in the absence of any allegations or evidence to the contrary, that the defendant railway company is proceeding to avail itself of the rights conferred by this franchise in a legal manner and in compliance with the requirements of the law." Burrus v. City of Columbus, 105 Ga. 42, 45, 31 S.E. 124, 125.

See, also, Mauldin v. Southern Shorthand & Business University, 126 Ga. 681, 683, 55 S.E. 922, 8 Ann.Cas. 130; Nicholson v. Spencer, 11 Ga. 607, 611; 10 R.C.L. 880, 881.

With respect to the effect of the allegation quoted as an admission against the plaintiffs, see New Zealand Fire Ins. Co. v. Brewer, 29 Ga.App. 773 (6) (7), 116 S.E. 922.

"That which the law authorizes to be done, if done as the law authorizes it to be done, cannot be a nuisance." Burrus v. City of Columbus, supra; Bacon v. Walker, 77 Ga. 336.

While it is true, as provided in the Civil Code, § 4457, that "a nuisance is anything that worketh hurt inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance," the expression "may otherwise be lawful" shows that the act complained of, in so far as it causes "hurt, inconvenience or damage to another," must be unlawful, that is, a violation of some right of the plaintiffs in order to constitute a nuisance. Simpson v. Du Pont Powder Co., 143 Ga. 465, 85 S.E. 344, L.R.A. 1915E, 430. Where the act "itself is legal, it only becomes a nuisance when conducted in an illegal manner to the hurt, inconvenience, or damage of another." (Italics ours.) City of Quitman v. Underwood, 148 Ga. 152 (1), 96 S.E. 178. The plaintiffs having failed to show, either in their petition or by evidence that the act of the defendant by which they claimed to have been damaged was either in itself unlawful or that it was executed in a negligent, unskillful, or improper manner, did not establish the fact of a nuisance. Atkinson v. City of Atlanta, 81 Ga. 625, 7 S.E. 692. See Bacon v. Walker, supra; Burrus v. City of Columbus, supra; Almand v. Atlanta Street Ry. Co., supra; Brown v. Atlanta Railway & Power Co., 113 Ga. 462 (2), 39 S.E. 71; Mayor, etc., of Waycross v. Houk, 113 Ga. 963 (1), 39 S.E. 577, Georgia R. & B. Co. v. Maddox, 116 Ga. 64 (4), 42 S.E. 315; Atlantic &...