Louisville & Nashville Railroad v. West End Heights Land Co. , 135 Ga. 419 ( 1910 )

Lumpkin, J.

The plaintiff, a land company, divided a tract of land, lying outside the city limits of Atlanta, into lots, made a plat thereof, and sold some of the lots. It sold two lots, which, ■according to the map, abutted on one of the platted streets, to a railroad company. Subsequently the land company sued the railroad company, and alleged that the defendant had, without the plaintiff’s consent, dug a deep cut in front of another adjacent lot owned by the plaintiff, in and along the street on which the lots abutted, thus entirely cutting off and destroying all ingress and egress to and from the lot of the plaintiff by means of such street and a highway near by, that being the only easy and direct route into the city, and the one exclusively used by the occupants of lots in the vicinity, and thereby leaving no outlet from the lot of the plaintiff except by a circuitous way into a different highway. It was alleged that the market value of the plaintiff’s lot was thus decreased. The plaintiff obtained a verdict for damages. The defendant’s motion for a new trial was overruled, and it excepted.

It was contended that the agents of the land company knew that they were selling two lots to a railroad company, and that the latter expected to construct a railroad, and that payment for the lots sold included any damage which might result to the adjacent lot from a proper construction of the railroad. Eeliance was placed upon the case of Seaboard Air-Line Ry. v. McMurrain, 132 Ga. 181 (63 S. E. 1098). The evidence does not bring the .present case within the ruling there made. In that case an owner of a tract of land, for a valuable consideration, conveyed to a railway company a right of way through his land, for the purpose of building and operating a railroad.

It was further contended that if the digging of an open cut across the street or way on which the plaintiff’s lot abutted amounted to a nuisance, it was public in its character, and that the plaintiff suffered no damage different from that suffered by the general public. But this is not sound as applied to the present case. If the plaintiff’s property rights were injuriously. affected by the obstruction of a street or way which furnished an important avenue of approach to _ its lot, by digging an open railroad cut across such street or way in front of such lot or contiguous .thereto, without its authority, so as to close such street or way and pre-. vent ingress to and egress from the lot thereby, and thus depreciate its market value, the owner would not stand in the same position as the general public, but could bring an action for the damage so caused. Coker v. Atlanta, Knoxville & Northern Ry. Co., 123 Ga. 483 (51 S. E. 481).

,. The suit was based on the interference with the principal means of ingress to and egress from the plaintiff’s lot, and the consequent diminution of market value. Following the plaintiff’s allegations on this subject, there was a general statement in the petition that the market value of its lot before the cut was dug was $700, but on account of the digging of the cut it has been reduced to about $200. But as no damage to the plaintiff and no wrong on the part'of the defendant was alleged except in regard to the cutting off of ingress and egress by digging the cut across the street, this, general statement must be taken in connection with the other allegations, and not as setting up an additional ground for damages. At one place in his charge the judge recognized this; but at several other places he dealt with the case as if the mere proximity of & railroad cut to the plaintiff’s lot, if it diminished the value thereof, would furnish a basis of recovery, without limiting the plaintiff’s right to damages arising from interference with the street. The defendant had a right to construct its railroad on its own property, using proper fills and cuts for that purpose. If its road upon its own right of way or property was lawfully. constructed, and without negligence in the manner of doing so, the mere fact that a railroad cut might be unsightly or undesirable-in the neighborhood of the plaintiff’s lot w^ould not authorize the plaintiff to recover damages on that account, in the present case. The language of the court, repeated several times, was calculated to place before the jury too broad a basis for consideration in the finding of damages. At one time he said: “Has this property been damaged by this cut; and if so, to what extent?” At another time he said: “If the property was worth less in the market immediately after the cut' was made than it was immediately before the cut was made, the plaintiff would be entitled to recover if the diminution in the market value was attributable to the cut made by the defendant; the plaintiff would be entitled to recover the amount of this diminution in market value.” This was substantially repeated in another part of the charge. We do net hold that the amount of the verdict was without evidence to support it, but its size may have been affected by these charges of the court. Other grounds of the motion for a new trial are sufficiently covered by the headnotes. Judgment reversed.

All the Justices concur.