69 Ga. 396 | Ga. | 1882
This was an action of trespass for damages done to plaintiff’s land by reason of the construction of an embankment by defendant in the building of its road, by reason of which certain rain water falling was directed from its natural and ordinary channel, and thrown on the land of plaintiff, resulting in the washing away of plaintiff’s soil, cutting said land into ditches and rendering it unfit for cultivation, to the damage of plaintiff five hundred dollars.
Under the evidence and charge of the court, the jury returned a verdict for the defendant. A motion for a new trial was made, which was overruled, and plaintiff excepted.
The errors assigned are on certain instructions given to the jury.
The son of plaintiff, who was a witness in said case, testified “ that the plaintiff got said land as widow of her husband ; ” “ that her husband gave the right of way and was living on said land after the embankment was made. 'Witness owns one of half the lot and his father, before his death, the other half. Pláintiff derived her land jfrom her husband.”
We think this evidence sufficient upon which to base •the charge complained of, and we find no error in the ■charge, for the cause stated.
The question that arises from this charge is, how far and to what extent a railroad company is liable to one who grants the right of way, for damages to lands other than those occupied by the right of way resulting from the construction of their road. The general rule recognized in this state is that where the land of a citizen is taken against his will, upon which to build a railroad, he should be paid its full value in coin according to quality, form and location, but if the owner sets up a claim for apprehended evils and inconveniences, the incidental benefits which he receives from the location of the road upon his property should be’ allowed by way of reduction of the damages so claimed. 30 Ga., 43.
But this rule was only prescribed in a case where it was the purpose to assess damages to the owner for seizing
Suitable bridges and culverts, to convey the water across the railway at or near the place where it naturally flows, are necessary to the proper construction of tne road, except where they cannot be made, or where the expense of making them is greatly disproportioned to the interest to be preserved by them. 35 N. H., 569; 1 Redf. on Law of Railways, 305-6, and note (6). Where a corporation, either by donation or compulsory purchase, enters upon a right of way thus obtained, and proceeds under its charter to construct a road, it should exercise due care and skill in its work, and have a proper regard for the interests of others, and if it does not use this due care, it will be liable for the consequences. 54 N. H., 545.
The general rule may thus be stated : That in the absence of constitutional or legislative provision, where the grantees of a franchise have not exceeded the power conferred upon them, and where they are not chargeable with want of due care, no claim can be maintained for any damage resulting from their acts — actus legis nemmi est damnosus. But though so authorized to construct a work, yet if in doing so théy build or locate it so unskilfully and with such want of due care as damages result therefrom, they are liable. •
The power to construct a road is todo so with ordinary care and skill, because the right to do that thing with ordinary care and skill was somebody’s right of property which has been taken from him by a compulsory process, and appropriated to public use ; the right so bought remains in a legal sense what it was before, hence the grantee of a public franchise would not be liable for acts done with care and skill, if they do not transcend the power conferred upon them. 1 Sedgwick on Dam., 207-8.
So if the defendant below, under the power conferred, so constructed its road with prudence and care, it would
4. Neither do we think, as charged in the third ground, that against such actual damages as claimed, the defendant could set off such incidental benefits to plaintiff afe might arise from the construction of the road over his land. Code, §648 ; 17 Ga., 40.
Judgment reversed.