92 Ga. 623 | Ga. | 1893
Bentley sued the City of Atlanta for damages resulting from the raising of a bridge in a street, near to and adjoining his premises. On demurrer the court ruled that the declaration set forth no cause of action, and on objection by the defendant, disallowed two amendments offered by the plaintiff The declaration and the amendments are set out in the report prefixed to this opinion.
1. It was contended on behalf of the defendant that the plaintiff had no right of action, because he was a mere tenant of the premises alleged to have been damaged. There is no merit in this contention. A tenant, although he has no estate in the land, is the owner of its use for the term of his rent contract, and he can recover damages for any injury to such use occasioned by the erection and maintenance of a public nuisance in the street adjacent to or in the immediate neighborhood of the premises. See 12 A. & E. Enc. of L. 719; Crowell v. Railroad Co., 61 Miss. 631.
2. It appears from the declaration that the bridge was raised by a railroad company whose line crossed the street under the bridge; and it was contended that the plaintiff, instead of suing the city, ought to have sued the railroad company. The duty, both with respect to the general public and the occupants of premises along the streets of a city, of keeping the streets free from permanent or long continued nuisances, rests primarily on the municipal government; and this duty cannot be evaded by urging the right and duty of a railway company to bridge its line at street crossings and maintain the bridges and crossings in proper con
3. The declaration set forth a cause of action, and the court erred in disallowing the amendments offered, and m sustaining the demurrer. The question of the measure of damages was not made in the court below, and we do not deal with it. The demurrer was a general one and did not raise the question as to whether all the