78 Ga. 276 | Ga. | 1886
This is an action to recover damage from the city of Atlanta for improper, negligently constructed and inadequate sewerage upon Whitehall street after its elevation by grading the same. This negligence, it is alleged, and was insisted upon before the jury, caused the water from heavy rains to overflow plaintiff’s lot and house and greatly to damage the latter in the walls by loosening the cement, in the papering by ruining it, in the flooring by rotting it, and in this way compelling her to expend money and to apprehend more expense from heavy rains from time to
In Green’s case, 67 Ga. 386, affirmed in Moore’s case, 70 Ga. 611, it is held that whenever, by reason of altering the grade of a street, a person is damaged in property thereon, such person may recover, provided the increased value of that property by the alteration of the grade does not equal or exceed the damage done the property. The
It follows necessarily that if this suit, as confined by the able judge who tried it, had been an action for dam
But it is true that allusion is made to the raising the grade in the declaration, and some of the testimony speaks of its alteration of the natural declivity of the street and its cause of water changing its course, and testimony was in that water flowed over the sidewalk without regard to the sewer or its negligent construction; and whilst the able judge endeavored to restrict the jury to the damage caused by the sewer, it is doubtful, to say the least, that even his firm hand and great authority succeeded in doing so. The jury did find damage to the cement on the wall, and there is evidence that this was caused by the water ponded in the yard, which resulted from the flow over the sidewalk from the street as graded. Such being the testimony let in and the verdict rendered, it seems impossible, perhaps, at least improbable, that all the damage resulted from the negligent and unskillful laying of the sewer and its want of ca
In the next case, the City of Rome vs. Omberg, 28 Ga. 46, the agent of the city in making the grade did nothing unskillfully or negligently, but the allegation is that the street adjoining Omberg’s lot was cut down, “whereby his fence was undermined and thrown down,” “and that it would cost about one hundred and twenty-five dollars to build a stone wall sufficient to prevent the wasting and crumbling away of the bank, and to secure the fence from being undermined,” and in the charge of the court to the jury, the court made no allusion to any negligence or un. skillfulness, but without any negligence at all, the jury were instructed, “that if the injury complained of had occurred within four years from the commencement of the action, and they should believe that it resulted from the act of the defendant, then the plaintiff was entitled to recover whatever damages he had proved.” The jury found $125, the proved cost of the stone wall, and this
The next case is Roll vs. The City of Augusta, 34 Ga. 326, where it was alleged that the city had authorized a railroad company to erect a track on the street and causing plank roads to be constructed, by which parts of the streets were elevated, and insufficient drainage having been provided, his property was overflowed. On the trial, Roll proved “that by elevations and changes made in constructing the several roads, water was thrown upon his premises and into his houses after rains, causing a damage of $1,600 per annum,” and further injuries from the running the cars, keeping people on horses from reaching his carriage shops. In delivering the opinion affirming the judgment for the city, Judge Lumpkin merely says that the authorities are against the recovery and that Borne vs. Omberg covers the case. No unskillful or negligent work is proved. The railroad constructed the works just where the city authorized it to be done, and it was, so far as the report shows, skillfully and not capriciously done. The damage was consequential on the act, not on careless or unskillful work; but the road-bed and plank-road necessarily required some elevations and excavations. It is true that an allegation is made that “ no adequate drainage was provided,” but with the allegation it rests; nothing more is said about it on the trial in the evidence reported.
The last time the question came before this court in respect to grading the street, prior to the operation of the constitution of 1877, is to be found in the 66th Ga. Reports, p. 80, Fuller vs. The City of Atlanta. The transaction occurred in 1870 and 1871, and subsequently prior to the operation of the constitution of 1877, although finally ruled by this court in 1880. Fuller did not recover, but
So that, before the constitution of 1877, this court held that reasonable care must be taken in constructing the grade, and if damage resulted from careless and unskillful construction, the ministerial act of its servants, the city would be liable, though not for any error of judgment in the legislative act, or exercise of judgment in ordering the work done by the council.
Judge Crawford says further for this court: “If any principle of law could be settled, it would seem that the doctrine that a municipal corporation, acting under authority legally conferred, to grade the streets, was not liable for injuries done to the property of an adjacent land
It seems thus to be clear that in grading or in constructing sewers skill and eare must be used, it being ministerial work, and if not used, the city was liable prior to, and exclusive of, the constitutional provision now of force. That provision makes the city compensate for the act, however skillfully done, if damage ensue, by paying the damage; and it is to cases of that sort, where the work is carefully done and just compensation must be given, that this court allows the additional value of the property by reason of the work to be set off, so as to make the just compensation that the constitution requires, and to confine it within the limits of justice. For careless, unskillful and negligent ministerial work, such set-off never was allowed within my reading and memory. We conclude, therefore, that in so far as the damage resulted from the
It is contended, however, and the court charged the jury on the point, that the city is estopped by ratification, because its servants and employés did work o n this connecting sewer and thereby the city recognize d its legality. W. & A. R. R. vs. Atlanta, 74 Ga. 774, and 4 Wallace, 657. But we fail to see in this record evidence of such work, except by Mr. English, and his extended only to moving it when he laid the pavement and then put it back again. We hardly think that such evidence from a contractor of the city would estop it from calling for evidence
The conclusion we reach is, that the ends of justice under the law demand a reversal of the judgement of the city court and the grant of a new trial, and it is so ordered.
Judgment reversed.