129 Ga. 393 | Ga. | 1907
(After stating the foregoing facts.)
Shortly after the pronouncement in the Green case, that if any owner of property be damaged by the grading of a street he may recover for such injury to his freehold, the question arose whether the grading of streets should be suspended by injunction because •consequential damages would result to an abutting-land owner. In this case (Moore v. Atlanta, 70 Ga. 611) it was held that an injunction ought not to be. granted to stop the operation of the municipal government and clog its wheels, and that the remedy of the abutting-land owner was an action for damages. The reasoning of the court was that if improvements in the highway were within the constitutional provision as to first paying damages, the power of municipalities to improve its streets would be destroyed, if before even repairing a street it must try with every property •owner the question whether the improvements would help or hurt him; hence, ex necessitate rei, this provision of the constitution did not apply in the case of consequential damages to an abutting-land owner where the city graded its streets to make them more accessible or safer for passageway. Upon the -theory that a street railway is a public convenience for passing along a city’s streets, the principle of the Moore case has been extended to street railways. Brown v. Atlanta Railway Co., 113 Ga. 462 (39 S. E. 71). But commercial steam railroads receive legislative sanction to use .a city’s streets from altogether different considerations than those which apply to street railways. The former constitute the great arteries of commerce, and of necessity must have continuous track-age that they may expeditiously serve the general public in the
It is contended that as the Terminal Company and the Foundry Company own the fee in the street fronting their respective properties, their property lines touch in the middle of the street; and as the track is to be laid on the half of the street, contiguous to the Terminal Company’s property, its construction should not be enjoined, because no part of the Foundry’s property will be taken..
The court found from the evidence that “the construction of the railroad track in Foundry street affects and interferes with the right of egress and ingress to the lot owned in fee simple by the Foundry Company)-, which is calculated thereby to inflict an injury to the lot itself.” There was evidence to support this finding. “The construction and operation of a railway in a public street is a physical invasion of the easement of access of abutting-land owners, and is a damage to the property, within the meaning of the constitutional provision which declares that private property shall not be taken or damaged for public use without just compensation being first paid.” A. & B. Ry. Co. v. McKnight, 125 Ga. 329 (54 S. E. 148). Hence it was not erroneous to enjoin the laying of the railroad track along Foundry street until the Foundry Company had been paid or tendered payment for any damages it might have sustained. A. & W. P. R. Co. v. A., B. & A. Ry. Co., supra.
A motion was made to reopen the case because of an alleged misapprehension of fact by the court in announcing its decision on the interlocutory hearing. The court refused to reopen the case, and rendered a written judgment covering the various- issues involved in the case. We have discussed these issues, and are in accord with the conclusions of the trial court. There was no error in refusing to reopen the case.
Judgment affirmed on both bills of exceptions.