Streyer v. Ga. S. & F. R. Co

• Decision Date: 01 August 1892
• Citation: 15 S.E. 637,90 Ga. 56
• Court: Georgia Supreme Court
• Parties: Streyer v. Georgia S. & F. R. Co.

15 S.E. 637

90 Ga. 56

Streyer

v.Georgia S. & F. R. Co.

Supreme Court of Georgia.

Aug. 1, 1892.

Condemnation for Railroad—Construction op Road in Street—Damages.

1. Under a statute which authorizes a railroad company to construct its road in a public street, but not until the payment by it of all damages which will be occasioned thereby to the property of any person, and which allows either the company or the property owner to commence proceedings to have the damages assessed, the company, on a trial of an appeal entered by it from the assessment made in a proceeding commenced by it, is entitled to open and conclude, the burden of proof being upon it to sho«v either that the property in question was not damaged, or, if it was, the amount which would compensate the owner, and which must be paid or tendered by the company before constructing its read in the street on the terms prescribed by the statute. See Railroad Co. v. Strand, (Wash.) 30 Pac. Rep. 144.

2. The damage to contiguous property resulting from the construction of the railroad in a public street, which the act of December 17, 1888, (Acts 1888, p. 133,) contemplates, is such damage as must he compensated for by reason of that provision of the constitution which declares that "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." The ultimate and only measure of such damage is the diminished market value of the property. Market value for this or that particular use, and change in the same by reason of locating the railroad in the street, are irrelevant, save as evidence tending to show general market value; that is, value in the open market without respect to any particular use. Diminished rental value for any purpose is no basis for compensation except as to its result, if any, on the general value.

3. In determining the question of damages and assessing the amount, the physical property (land and buildings) and the easement of access thereto from the street are not to be considered as having separate values, as if they were two different parcels of property, but are to be treated as parts of one and the same estate. Whether damage has been or will he done by the construction and use of the railroad depends upon whether the market value of the whole estate as one object of ownership has been or will be diminished by reason of devoting the street to this new use.

4. The court committed no material error in admitting or rejecting evidence, or in charging or refusing to charge the jury. The verdict was correct, and there was no error in denying a new trial.

(Syllabus by the Court.)

Error from superior court, Bibb county; A. L. Miller, Judge.

Proceedings by the Georgia Southern & Florida Railroad Company to assess the damages to the property of W. H. Streyer by the construction and operation of its railroad. A judgment for Streyer was reversed by the superior court, and he prosecutes a writ of error. Affirmed.

The following is the substance of the official report:

Streyer moved for a new trial on the ground that the verdict was contrary to law, evidence, etc. Also because the court permitted the witness Elkin to be asked the following question: "What was the condition of Fifth street before the railroad was put down?" Also because the court permitted Collins to answer the following question: " How much more would you give for the Streyer property now than you would before the railroad came there? Answer. Twice as much." Also because the court erred in refusing to permit Freeman and another, witnesses for defendant, to answer the following question: "Tell the jury why you left there, "—referring to their leaving the dwelling houses on that street, owned by other parties than Streyer, —because the same was material to the issue, and was asked to show that the construction of the railroad along the street in question had actually driven tenants from houses occupied by them all along said streets. Also because the court erred in not permitting Gibson, a witness for defendant, and his agent to collect his rents and attend to said property, to testify to the declarations and complaints made to him at the time by the tenants in Streyer's houses, when they vacated the same; said declarations being material, as showing directly what damage the construction of this railroad in the street in front of Streyer's property had already inflicted upon it, and the cause of their leaving it. Also because the court erred in refusing to charge as follows: "I charge you that, under the wording...