Atkinson v. Kreis, 140 Ga. 52

Atkinson v. Kreis

140 Ga. 52 | Ga. | 1913

Evans, P. J.

(After stating the foregoing facts.)

1. The suit was instituted against the receiver without previous leave of the United States court authorizing it. It is insisted that the suit is not maintainable without such order. This point *54is not tenable. The act of Congress of August 13, 1888, provides that every receiver of any property, appointed by any court of the United States, may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver was appointed; but that such suit shall be subject to the general equity jurisdiction of the court in which such receiver was appointed, so far as the same shall be necessary to the ends of justice. 25 Stat. 436, 4 Fed. Stat. Ann. 387, U. S. Comp. St. 1901, p. 582. The injury complained of in this case is the destruction of the landowner’s easement which the railroad company contracted to. give him in consideration of his relinquishment of an existing private road essential to the enjojonent of his property. It was alleged, and proof was submitted to sustain the allegation, that the interference with the contractual way was the result of the construction of a track by the receiver, intended to serve a manufacturing plant located on property adjacent to the railroad. The act of the reqeiver in making the obstruction was in pursuance of a transaction of his carrying on the business of the company, referred to in the act of Congress. The provision in the act that such suit shall be subject to the general equity jurisdiction of the court in which such receiver was appointed, so far as the same shall be. necessary to the ends of justice, applies only to sxxits which seek to interfere with the receiver’s possession of the property, and to process the execution of which would have that effect. Dillingham v. Hawk, 60 Fed. 497; St. Louis Southwestern Railroad Company v. Holbrook, 73 Fed. 112. It does not interfere with, suits against it in respect to any act or transaction of the receiver in carrying on the business without the previous leave of the court.

2. The measure of damages for the destruction of the easement of way which the railroad company contracted to give the landowner in consideration of his relinquishment of an existing right of access to his property is its effect upon the landowner’s property. It was expressly recognized in the contract between the railroad company and the landowner that the contractual right of way was necessary to the enjoyment by the landowner of his property; it was treated as an easement appurtenant to that property. If the destruction of that easement affects the value of the appurtenant property, then the measure of damages is the difference in *55the market value of the landowner’s property with the substituted way opened and with it closed. See, in this connection, Mallory v. Morgan County, 131 Ga. 271 (62 S. E. 179).

3. Certain witnesses were examined with reference to the value of the property before the way was closed and its value after the way was obstructed. Some criticism is made of the form of the question, as indicating that the witnesses were not confined to the particular road which was closed, as affecting its market value. When the testimony to which objection is taken is considered in connection with the context, we think it clear that the testimony of the witnesses had relation solely to the effect of the particular road described in the contract between the railroad company and the landowner, its effect upon the landowner’s property if maintained according to the contract, and its effect upon the market value by reason of the road being rendered impassable by the construction of the side-track over it. This evidence was competent to show the market value of the property before and after the contractual way was obstructed.

4. It is contended that the recovery is for too large an amount; but after a careful consideration of the evidence, we do not think the verdict is excessive. The verdict is authorized, and has the approval of the trial judge, and no sufficient reason is made to appear to reverse the judgment of the court refusing a new trial.

Judgment affirmed.

All the Justices concur.