Smith v. City of Atlanta

• Decision Date: 12 July 1918
• Docket Number: 9240.
• Citation: 96 S.E. 334,22 Ga.App. 511
• Parties: SMITH v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

96 S.E. 334

22 Ga.App. 511

SMITH v. CITY OF ATLANTA.

No. 9240.

Court of Appeals of Georgia, First Division

July 12, 1918

Syllabus by the Court.

The measure of damage to abutting property caused by changing the grade of a street is the difference between the market value of the property before and after the change of grade. City of Atlanta v. Atlas Realty Co., 17 Ga.App. 426 87 S.E. 698, and cases cited.

In a suit against a municipality for damages to abutting property from changing the grade of the street in front of the property, testimony as to the value of other abutting lots similarly affected by reason of the change in the grade of the street would be relevant. Hurt v. Atlanta, 100 Ga. 274, 28 S.E. 65; Mayor, etc., of Americus v. Tower, 3 Ga.App. 159, 59 S.E. 434.

While testimony to the effect that as soon as the agitation of the movement to change the grade of the street was begun, but before any work was actually commenced, the market value of similar abutting properties began to increase, could not be admissible for the purpose of showing an actual enhancement of the market value of the property in dispute by reason of the change, of which the city could avail itself, still since the evidence thus adduced was relevant for the purpose of throwing light upon the actual value of the property prior to the change (Gate City Terminal Co. v. Thrower, 136 Ga. 456, 465, 71 S.E. 903 [3]), and as the trial judge gave to the jury the correct measure of damages, this evidence does not afford a ground of complaint to the plaintiff.

It is alleged that the court erred in permitting the witness M. F Amorous to testify from a certain blueprint or plat of Ivy street, showing the change from the old to the new grade on that street, and that the court erred in allowing the witness to refresh his memory from this plat; it being in evidence that he did not make the plat, and was without knowledge of its making. Held:

A witness may refresh and assist his memory by the use of any written instrument or memorandum, and it is not essential that the memorandum should have been made by the witness himself, provided he finally speaks from his recollection thus refreshed, but in order to testify positively from the paper itself, he must either have made the paper himself, or if not so made, at some time when the facts were fresh in his memory, he must have known the facts stated in the paper to be correct. Civil Code...