82 Ga. 320 | Ga. | 1889
Campbell brought his action for damages against the defendant, in the city court of Atlanta, and alleged in his declaration, in substance, that he was the owner of a certain house and lot on Frazier street, in the city of Atlanta, which house had been occupied by him for five years past as a residence; that the defendant, within the present year, bad constructed and was operating a street railroad on said street; that the western rail of the track of said railroad was laid within thirteen inches of the curbstone on the petitioner’s side of the street, and in front of his lot; that the location of
The defendant demurred to this declaration; whereupon the plaintiff amended as follows :
“ The plaintiff amends his petition and says: (1) That the street on which said street-car line is located is a very narrow street, not more than nineteen feet between the curbstones on the sidewalk, and was unsuited to the purpose for which the defendants have appropriated it. (2) The defendants moved their street-ear track from a broader street only one block away to its present location. (S) When the defendants were preparing to lay down their track on said street, the plaintiff protested against the track being laid down so near his prem ises; whereupon the president of said defendant company ordered the track to be laid as close as it could be laid to plaintiff’s property, in order that the plaintiff might be taught that he was not the boss in that case. (4) Plaintiff shows that his property is damaged in the sum of two thousand dollars, by reason of the laying down and operating of said street railway in the manner specified in the original declaration, and that this injury is special to the plaintiff, the public at large not participating in said injury. (5) That in bringing their cars into the center of the city, the defendants often double their teams in front of Campbell’s property, the same being on an up-grade, and often*324 drive ther horses and mules under the lash, causing the animals and mules to plunge, rear, pitch and jump upon the sidewalk along and in front of plaintiff’s property and house, greatly to the annoyance and disturbance of plaintiff and his family.”
The defendant demurred specially to this amendment, on the grounds that the amendment set up a new cause of action, and that it set out no ground for recovery in law; and demurred to the declaration as amended, as not sufficient in law. The court sustained the special demurrers to the 3d and 5th amendments, and overruled the special demurrers as to the 1st, 2d and 4th amendments, and then sustained the general demurrer to the declaration as amended; to which ruling the plaintiff excepted, and assigned error thereon.
We cannot agree with counsel for the defendant in error in this view of the law as it now stands. Their construction of the law would have been correct before the adoption of the new constitution in 1877. That constitution prescribed a new rule on this subject. The rule under the old constitution was, that private property
Under the old rule, unless the property was taken, the individual could not recover, however much the property may have been damaged. Under the new rule, whether the property is taken or not, if it has been damaged by reason of the construction or operation of any improvements made for the use of the public, the owner can recover whatever damage the property has actually sustained. So we think it does not matter whether the construction and operation of the street-railroad is a new use or burden on the street or not; if, by reason of such construction or operation, the private property of an individual is damaged, he is entitled to recover therefor. Before the adoption of this rule, municipal corporations could change the grade of the streets, and thereby damage the property of individuals, and they had no recourse; but since the adoption of the new rule, this court has decided that if a municipal corporation changes the grade of the street so as to damage the property of an individual, he has a right to recover. Green vs. Atlanta, 67 Ga. 386. And this has been held by the courts of other States which have a similar constitutional provision on this subject. - If these decisions are correct (and we have no doubt of it), we do not see why an individual who has been damaged by reason of improvements put on the street in the shape of a street-railroad, cannot recover therefor, as well as an individual who has been damaged by improvements being made in the grade of the street.
' After much reflection and a review of all the authorities we can find upon the subject, we think the following propositions will be found to be the true law of the
The Supreme Court of Ohio, in the case of Street Railway vs. Cumminsville, 14 Ohio St. 523, in discussing this subject, uses the following language : “ There exists in the owners of adjoining lots a private right to have free access to their lands and buildings from the street, as the same was and would have continued to be according to the mode of its original use and appropriation by the public, and there can be no change of such mode and adaptation of the street to new vehicles and methods of carriage and transportation which shall materially impair or destroy such right, unless by the consent of the owners, or upon the payment of due compensation to them.” The Supreme Court of Wis
The fifth amendment alleges that the defendant often doubled its teams in front of the plaintiff’s property, and the street being an up-grade, often drove its horses and mules under the lash, causing them to rear, plunge, pitch and jump upon the sidewalk in front of the plaintiff’s property, greatly to the annoyance and disturbance of himself and his family. There was no error in sustaining the special demurrer to this amendment ' It does not allege that this damaged the property, but simply alleges that it was an annoyance to the occupants of the property; and as before said, this is not an element of damage to the owner of the property. For the plaintiff’ to recover, the damage must be to the property, and not merely an' inconvenience or annoyance to himself. If the matters complained of in this amendment damaged the property, the jury might consider them; if they simply annoyed or inconvenienced the persons occupying the property, they should not be considered in estimating the damages to the property.
Judgment reversed.