No. 4383 | Ga. | Jan 13, 1925
Lead Opinion
This is the second appearance of. this case in this court, and for a full statement of it see Mitchell County v. Hudspeth, 151 Ga. 767, 768 (108 S.E. 305" court="Ga." date_filed="1921-08-10" href="https://app.midpage.ai/document/mitchell-county-v-hudspeth-5583622?utm_source=webapp" opinion_id="5583622">108 S. E. 305). It was then said: '“The court sustained paragraph 5 of the defendant’s special demurrer, which in part was as follows: ‘In the 15th paragraph [of the petition] the words “which, considering its value as a bridge site and a ferry site and for other purposes, is, and was, at the time of such talcing, of the value-of $25,000, and” on the ground that (a) said words and allegations were irrelevant, and constitute no element of any cause of action in favor of plaintiffs against these defendants, and (b) they present a claim and measure of damages which is illegal and not allowable under the law, and which plaintiff is not entitled to, and which should not be considered in estimating plaintiff’s damages.’ The plaintiff in her cross-bill of exceptions excepted to this ruling of the court. We think that the court erred in sustaining this special demurrer. Section 781 of the Civil Code of 1910, provides that ‘In determining the value of lands taken for a bridge, its prospective value as a bridge site and its present value as a ferry, if one is in use, may be taken into the calculation.’ Under the allegations of the present petition the land taken by the defendants from the plaintiff was for the avowed - purpose of building a free bridge, and the approaches thereto, across the Flint river, and for this damage to her property she is entitled to just and adequate compensation, and in order to ascertain what this just and adequate compensation is, it seems to us, while the plaintiff has no exclusive right to establish and maintain a ferry on her land, as decided in Hudspeth v. Hall, 111 Ga. 510 (36 S.E. 770" court="Ga." date_filed="1900-07-13" href="https://app.midpage.ai/document/hudspeth-v-hall-5570108?utm_source=webapp" opinion_id="5570108">36 S. E. 770), yet the value of the land taken by the county as a ferry or bridge site, and the approaches thereto, together with all other facts and circumstances calculated to enhance or diminish the value of the property taken or damaged, may be inquired into. In the case of Dougherty County v. Tift, 75 Ga. 815, Blandford, J., delivering the opinion of the court, said: ‘If Tift was the owner of the land through which this stream ran, on both sides, then, under the act of 1850, he had the right to erect a bridge over the same, and charge toll for crossing thereon; and whether the bridge be public or private, it belonged to Tift, and when the County of Dougherty takes his land and erects another bridge, which causes damage to Tift’s property, he is entitled to just compensation
The first six grounds of the motion for new trial in the present case complain of the admission of evidence tending to prove the cost of operation of the ferry and the income derived therefrom, on the ground that the same was irrelevant, immaterial, and illustrated no issue in the case. This evidence was admissible as tending to show the '.value of the ferry and the land as a bridge or ferry site, and for the purpose of arriving at the amount of damages sustained by the plaintiff.
Other headnotes than the first require no elaboration.
The judge did not err in refusing to grant a new trial.
Judgment affirmed.
Concurrence Opinion
concurring specially. We think the charge dealt with in the third headnote is a correct statement of the law applicable to the pleadings and evidence. If it were an incorrect statement of the law, we do not think that the error would be rendered harmless by the general charge of the court, and by the evidence in the case. •