13 Ga. App. 321 | Ga. Ct. App. | 1913
1. A municipal corporation is liable to a property owner for the damage consequent upon altering the grade of the street or sidewalk in front of his premises, whereby bis means of ingress and egress are impaired or destroyed or a diminution of the market value of his property results. Central of Georgia Ry. Co. v. Garrison, 12 Ga. App. 369 (77 S. E. 193), and cit.; City of Atlanta v. Green, 67 Ga. 386; City Council of Augusta v. Schrameck, 96 Ga. 426 (23 S. E. 400, 51 Am. St. R. 146); Roughton v. Atlanta, 113 Ga. 948 (39 S. E. 316); City of Columbus v. McDaniel, 117 Ga. 823 (45 S. E. 59); Mayor &c. of East Rome v. Lloyd, 124 Ga. 852 (53 S. E. 103); City of Rome v. Rhodes, 134 Ga. 650 (68 S. E. 330).
2. The fact that the plaintiff bad put down a brick sidewalk in front of-
•3. There was no demurrer to the petition; and since it was therein alleged that the city, in raising the grade of the street in front of the plaintiff’s property, had failed, neglected, and refused to provide suitable and adequate means for the conveyance of the volume of water which flowed through a natural depression of the land at that point, and by reason of this failure water dammed up and ponded into an alleyway adjacent to his lot, whence it flowed into his store, any testimony tending to show that his store was subject to overflows of rainwater, caused by failure to provide adequate means of conveyance for the water, was relevant and material. While the petition may be subject to special demurrer calling for information as to how the water which was dammed up by the elevation of the street and sidewalk flowed into the plaintiff’s property, still, in the absence of such a demurrer, it was permissible for him to prove that, owing to the city’s act in raising the sidewalk, water overflowed his store, and to prove that the water entered either in front or in the rear or upon the side, or from all these directions.
4. Under the allegations of the petition, evidence that water overflowing from an inadequate man-hole spread over the street and sidewalk, and thence flowed into the plaintiff’s store, was admissible.
5. The action being one to recover damages for injuries to the plaintiff’s storehouse, and consequent diminution of the market value of the storehouse and the lot whereon it was situated, it was not error for the court, in charging the jury, to refer to the lot as “the property.”
6. The defendant pleaded that the grade of the street had been changed with the consent of the plaintiff. In the absence of an appropriate written request, the court was not .required to give in charge to the jury the language of section 4490 of the Civil Code, as to consent.
7. Since waiver is a relinquishment of a known right, the court correctly charged the jury that the plaintiff would have to be in possession of all the facts, and know the condition in which the municipal improvement in question would leave his property, before he would be bound by his consent or acquiescence in the proposed municipal improvement so as to waive his right to recover for any damage which might result to him thereby.
8. According to the evidence, the overflows into the plaintiff’s store occurred at a time sufficiently antecedent to the action and were of such character as to raise the inference and authorize the presumption that the municipality knew of the defects in the sewer, to which the injury of the plaintiff’s property was traceable.
9. The verdict is supported by evidence which would have authorized a