17 Ga. App. 426 | Ga. Ct. App. | 1916
Lead Opinion
The Atlas Realty Company brought suit against the City of Atlanta, alleging its ownership of certain real property on Ivy street in that city, and complaining that the municipality had raised the grade of that street in front of its property, and thereby damaged it in several particulars, to wit: (1) That during a number of months specifically mentioned, while the work of regrading the said street was progressing, access to the property owned by the plaintiff was seriously interfered with, and the-rental value of the said property thereby diminished, in varying amounts, set forth in detail; to the loss and damage of the plaintiff as specifically alleged. (3) That by reason of the regrading of the street in front of the property of the plaintiff, the plaintiff was compelled to expend various amounts, set forth in detail, in making the property conform to the new street grade established by the municipality, all of which expenditure was directly brought about by the act of the city in regrading and filling in said Ivy street.
The defendant demurred to the petition generally, as not setting forth a cause of action, and specially demurred to paragraph 2, on the ground that it disclosed that the plaintiff held-bond for title to. the property, and that no copy of the bond for title was set out therein or attached to the petition; and that the holder of a bond for title could not maintain the action instituted, under the allegations therein made. The defendant further demurred specially to the allegations in paragraph 4, that the rental value of the property, at the time it was purchased by the plaintiff, and at the time the city undertook to change the grade of the abutting street, was $397.50 per month, on the ground that these allegations were immaterial and irrelevant. The defendant demurred specially to the allegations in paragraphs 8 to 27 of the petition inclusive, setting forth in detail the alleged loss of rents for each month during the progress of the work, and alleging that
With the full statement of the issues raised by the pleadings, which is made above, we do not think it necessary to elaborate the rulings contained in the headnotes, which cover the essential points and controlling questions involved in the case. Judgment is affirmed, with direction that the defendant in error be required to amend its petition to conform to the ruling stated in the 4th headnote of this decision, or else that the petition be dismissed.
Judgment affirmed, with direction.
Dissenting Opinion
dissenting. In my opinion the petition as amended did not set out a cause of action, and the general demurrer should have been sustained.