The City Of Atlanta v. Word

• Decision Date: 31 October 1886
• Citation: 78 Ga. 276
• Parties: The City of Atlanta. vs. Word.
• Court: Georgia Supreme Court

78 Ga. 276

The City of Atlanta. vs. Word.

Supreme Court of the State of Georgia

OCTOBER TERM, 1886.

Husband and Wife. Municipal Corporations. Streets and Sidewalks. Sewers. Negligence. Constitutional Law. Damages. Estoppel. Before Judge Van Epps. City Court of Atlanta. June Term, 1886.

On May 12, 1885, Mrs. H. S. A. Word brought an action for damages against the city of Atlanta, alleging, in brief, as follows: She is the owner of a house and lot on Whitehall street in Atlanta. It was the duty of the city to provide sufficient sewerage to carry off rain-water. Not regarding this, it elevated the grade of the street until it was necessary for the lot to be filled with earth, therebyleaving the house below the level, and making it impossible to drain the premises except by artificial sewers connected with the sewer-mains of the city in the street. On buying the property, the plaintiff was compelled to put drains in the lower portion of the house to connect it with the city sewer, but by reason of the insufficiency of such sewer to even carry off the water which fell in the street, the rain-water has been continually forced back from the sewer into the plaintiff\'s yard and house, causing the floors of the latter to rot, etc. In the spring of 1884, the defendant again elevated the street in front of the property about eighteen or twenty inches, aggravating the former injury, and being in itself a distinct trespass.

It is unnecessary to set out the evidence. The jury found for the plaintiff $370. The defendant moved for a new trial on the following grounds:

(1) Because the verdict was contrary to law and evidence.

(2) Because the court refused a nonsuit.

(3) Because the court rejected testimony to the effect that after the city's work on the street was completed, the value of the plaintiff's property was equal to or greater than it was before, and that the benefits which it received from the street improvement were equal to or greater than any damage it might have sustained.

(4) Because the court admitted evidence of damage to the walls and other damage to the freehold estate caused by water which ran across the sidewalk, and that which came from the rear and could not find an outlet.

(5) Because the court charged as follows: " The city, in performance of the ministerial act of constructing a sewer along plaintiff's front, would be bound to use ordinary care and diligence in its work, and if the jury believe from the evidence that the sewer was of insufficient capacity, and was not capable of carrying away the water that collected there in view of the locality and the seasons of the year, and such collections of water as in times of rainsmight ordinarily and reasonably be expected to go into said sewer, and damage resulted to plaintiff by reason of the negligence and unskillful construction of said sewer, plaintiff would be entitled to recover such damages as the evidence shows she has sustained."

(6) Because the court charged as follows: " A section of the ordinances of the city of Atlanta introduced in evidence prescribes the method by which private drains of a citizen may be connected with street sewers, and another section provides for the punishment of a person as for a crime who makes such connections without requisite authority. If it appears from the evidence that, before the occupancy by the plaintiff of the premises in question, a private drain on her lot had been connected with a sewer in front of her premises and prior to the time of the overflows complained of, then, in the absence of proof to the contrary, the law, which holds all persons to be innocent of all illegal or immoral or criminal acts until proven guilty, will presume that said private drain was connected with said sewer under proper license or authority."

The motion was overruled, and the defendant excepted.

J. B. Goodwin; J. T. Pendleton, for plaintiff in error.

Alexander & Turnbull, for defendant.

Jackson, Chief Justice.

This is an action to recover damage from the city of Atlanta for improper, negligently constructed and inadequate sewerage upon Whitehall street after its elevation by grading the same. This negligence, it is alleged, and was insisted upon before the jury, caused the water from heavy rains to overflow plaintiff's lot and house and greatly to damage the latter in the walls by loosening the cement, in the papering by ruining it, in the flooring by rotting it, and in this way compelling her to expend money and to apprehend more expense from heavy rains from time totime. The jury found for her $370. The city, on being denied a new trial, excepted, and assigns error here on this denial.

1. The nonsuit asked for by the city for defect in her title is the first point to be considered. The plaintiff showed a deed to herself with possession in herself and husband. Without the deed, possibly possession alone would not enable herself alone to recover—the presumption being that the possession was his, as head of the family, and not hers. The husband himself, however, swore that the joint possession was in her right, and that rebutted the presumption that it was his; and when the deed was afterwards introduced, all doubt vanished, and no motion for a new trial, based on the insufficiency of her title, could prevail when the deed to her appeared at any stage of the case before verdict. 53 Ga. 454, 685; 67 Id. 144.

2. For the reason above given, the objection to testimony in respect to damage to flooring, papering and to the brick walls of the house requiring cement because such was damage to the freehold, was properly overruled. The possession of Mrs. Word, with the deed under which she held, is sufficient title in her, to recover for such injury to the realty. Ill. & St. L. R. R. vs. Cobb, 94 Ill. 55.

3. One main question, however, made in the record is this: Whether, under the allegations in the declaration and the facts of the case, the court should have admitted evidence that the elevation of the grade increased the value of the plaintiff's property to an amount equal to or exceeding the injury done her, in order to set off the same to the extent of barring recovery on her part.

In Green's case, 67 Ga. 386, affirmed in Moore's case, 70 Ga. 611, it is held that whenever, by reason of altering the grade of a street, a person is damaged in property thereon, such person may recover, provided the increased value of that property by the alteration of the grade does not equal or exceed the damage done the property. Theconstitution of 1877 gave the individual the right to recover in such case in the view this court took of the provisions of that instrument, —the clause therein which requires the public, for damage to property as well as for seizure of it, to make just compensation; but this court also held at the same time that the compensation must be just only, and that if the same thing which injured property also benefited it, injuring in one respect yet benefiting in another respect to the same degree, it would not be just compensation to count the injury and make no note of the benefit. Hence, we held that the benefit should be deducted from the injury, and just compensation would be made the person complaining when he got every cent of damage done his property less its increase of value by the improvement made. No other rule of compensation would be a just rule. Therefore, in the case before us, if the grade of the street in front of the plaintiffs house and lot, about the proper construction of which there is no complaint, precipitated the water or any portion of it upon her house or lot to its injury and damage, whilst she might recover for such injury so caused to the extent of just compensation for it, yet if her property was increased in value by the same act of grading the street to the same extent that house and lot were injured, she could not recover, or if the value was increased less than the damage, she could recover only the difference. Nor do we see why the same principle of justice would not apply as well to sewerage properly constructed, or to any other improvement of its streets and alleys necessary to the city\'s advancement and prosperity. But if either in grading or in sewerage, negligence in the one or the other caused the damage to the citizen\'s property, the case would fall without the rule, because the damage would follow, not from the lawful act of grading or sewerage, but from the careless and negligent manner of doing the act.

It follows necessarily that if this suit, as confined by the able judge who tried it, had been an action for dam-age incurred by the elevation of the grade, and water from it thrown upon the house and lot; if the court had allowed the jury to consider damage caused by the elevation of grade, and had not confined the jury strictly to damage flowing directly from the negligence of the...