Smith v. Floyd County

• Decision Date: 07 May 1890
• Citation: 11 S.E. 850,85 Ga. 420
• Parties: SMITH v. FLOYD COUNTY.
• Court: Georgia Supreme Court

11 S.E. 850

85 Ga. 420

SMITH v. FLOYD COUNTY.

Supreme Court of Georgia

May 7, 1890

Syllabus by the Court.

1. A judgment of nonsuit is no bar to a subsequent action for the same cause brought in due time.

2. Construing the constitution of 1877 and the Code together, a right of action exists against a county for damaging private property for public uses in constructing the approaches to a county bridge, thereby elevating the road-way above an adjacent lot so as to hinder access to the lot from the road.

3. The measure of damages is the actual depreciation in the market value of the lot caused by the work complained of.

Error from superior court, Floyd county; MADDOX, Judge.

Dean & Smith, for plaintiff in error.

Seaborn Wright and J. Branham, for defendant in error.

BLECKLEY C.J.

The Code, in section 3446, expressly recognizes the right of a plaintiff to recommence his suit on the payment of costs after he has been nonsuited in a previous action, and section 2932 saves his right of action for six months as against the statute of limitations. This court has recognized the right to sue again after nonsuit in Langston v. Marks, 68 Ga. 435, and Stirk v. Railroad Co., 79 Ga. 495, 5 S.E. 105. The apparent doubt entertained in Greenfield v Vason, 74 Ga. 126, is of no significance. Nor is the case of Kimbro v. Railroad Co., 56 Ga. 185, an authority upon the question; for that case dealt with a direct adjudication upon the cause of action as set out in the declaration and had nothing to do with any failure to support the declaration by evidence, which in this state is the ordinary ground for awarding a nonsuit. A direct decision upon demurrer to the effect that the plaintiff by his pleadings sets forth no cause of action, not merely that a good cause is defectively set forth, will constitute a bar to a subsequent action. To this effect are several cases in our Reports, such as Jordan v. Faircloth, 34 Ga. 47; Gray v. Gray, Id. 499; Black v. Black, 27 Ga. 40; McGinnis v. Justices, 30 Ga. 47; and Smith v. Hornsby, 70 Ga. 552. The question as to nonsuit is controlled for us by the two sections of the Code above cited; and there is much outside authority in harmony with them, though much also which seems to look in a different direction. Among the cases holding that a nonsuit is no estoppel, see Homer v. Brown, 16 How. 354; Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121 3 S.Ct. 99; Bucher v. Railroad Co., 125 U.S. 555, 8 S.Ct. 974. For a broad survey of the question on both sides see Bigelow, Estop.52; 1 Herm. Estop. 295; Wells, Res. Adj. 375. In the present case the facts touching the nonsuit are set forth in the plaintiff's declaration, and for that reason the ruling in Killen v. Compton, 57 Ga. 63, which holds that a former recovery is not available by mere motion, does not apply.

2. The constitution (Code, § 5024) declares: "Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." According to the declaration, the county of Floyd constructed an embankment and trestle-work as an approach to a public bridge, thereby changing the grade of the street, and rendering it impossible for vehicles to pass from the street to the plaintiff's adjacent lot, and from the lot to the street. The lot "is injured and damaged in that it is placed below the street, and is inaccessible thereto." The damage is laid at $800. The legislature has made no provision for assessing such damages, but the right to have them paid is expressly declared by the constitution. The county, by section 491 of the Code, is made a corporation and declared liable to suit. The Code, in section 3250, says: "For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other." And by section 2243 the Code declares that "for every injury done by another to person or property the law gives a right to recover and a remedy to enforce it." By the constitution (Code, § 5141) the superior court is invested with jurisdiction in all civil cases, with certain exceptions, and this case is not within any exception. We thus have a constitutional right, an injury affecting that right, a court of competent jurisdiction, a defendant declared subject to suit, and a provision for the appropriate remedy. What room is there for doubt that the action is maintainable? On general principles, an ordinary action at law, where no specific remedy is pointed out by statute, is available. Lewis, Em. Dom. § 624. The constitution (Code, § 5190) in express terms broadens the taxing power which the...