58 Ga. 595 | Ga. | 1877
This was a suit brought by the defendant in error against the city of Macon for damages arising from the digging down and removing dirt and gravel from the street in front of his house, not for the purpose of grading that street, but to fill up cavities in other streets of the city, and to improve them. The jury found for the plaintiff $600.00. The city excepted to a refusal by the court to grant a new trial, and brought the case here for our review.
In Markham vs. Atlanta, 23 Ga., 402, this court doubted that an action would lie, and ruled expressly that equity would not interfere by injunction; and in 28 Ga., 46, the court held that no action did lie, and it has so repeatedly ruled since.
Such is the general rule, therefore, in regard to the power of municipal corporations over streets, and injury consequent upon their legitimate grading thereof, to owners of houses thereon; but the amendment of 1863, to the Macon charter, uses language which may take the city of Macon without the rule. Upon that we pass no judgment now, as the question is not legitimately made in this record. Undoubtedly, however, the corporate authorities, in any event, would be bound to exercise proper care and diligence in their work, and if damage result from negligent, unnecessary, and careless work, the corporation would be liable. The verdict in this case, upon the facts, may not be far from a righteous one; but we cannot say that the case was fairly tried upon the issue made; and the case is therefore re
Judgment reversed.