31 Ga. App. 686 | Ga. Ct. App. | 1924
1. Where real estate has been damaged by an abutting street improvement made by a city, the owner cannot recover any damage for an alleged decrease in the market value of the property where, by reason of the enhanced value of the property because of the improvement, the market value of the property has not been decreased. Moore v. City of Atlanta, 70 Ga. 611 (3); Guess v. Stone Mt. Granite Co., 72, Ga. 320 (5); City of Atlanta v. Word, 78 Ga. 276 (3); Hurt v. City of Atlanta, 100 Ga. 274 (3) (28 S. E. 65).
2. The petition in this case for the recovery of damages because of decrease of the market value of the freehold, the court did not err in charging the law in accordance with the rule announced above.
3. Where the plaintiff is in possession of real estate devised to her under a will whereof she is the sole executrix, the assent of the executrix to the devise. is presumed. Thursby v. Myers, 57 Ga. 155. The question as to the plaintiff’s title to the property alleged co have been damaged, therefore, not being issuable, it was error prejudicial to the plaintiff, who did not prevail in the suit, to submit such issue to the jury, and for this reason a new trial is ordered.
Judgment reversed.
