Mayor of Savannah v. Williamson , 1918 Ga. App. LEXIS 670 ( 1918 )

Wade, C. J.

1. Where, as in this ease, damages are sought on account of injury to certain subdivisions of a 40-acre tract of land, alleged to have been caused by a change in the grade of abutting streets, and the petition fails to allege the market value of the entire tract prior to and after the grading, there can be no recovery; and, so far as the instant case is concerned,, this doctrine (right or wrong) has crystallized into unalterable'law. See former decision, 19 Ga. App. 784 (92 S. E. 291). It was there said: “If a plaintiff could select certain lots out of an entire tract belonging to him and sue for .the difference in market value of these lots before and after the grading of a street abutting them had been altered, notwithstanding .the value of the entire property, including these lots, had been greatly enhanced thereby, this - would be not only in direct opposition to the ruling in Nelson v. Atlanta, 128 Ga. 252 (57 S. E. 245), but also in opposition to the general principle that an increase in value resulting from improvement may be set off against damage caused by the grading of streets. Moore v. Atlanta, 70 Ga. 611, 617; Hurt V. Atlanta, 100 Ga. 274 (28 S. E. 65).”

(a) The fatal omission to allege in the petition the market value of the entire tract -before and after the grading of the a'butting. streets was not supplied by an amendment setting forth that the market value of plaintiffs’ lands “contiguous to the described lots, including said lots,” before the elevation was $40,000, and after the elevation only $20,000. There should have been a clear and unequivocal allegation in accordance with law. The depreciation alleged should not have been confined to the particular lots named, nor to the lots or land immediately contiguous to the described lots.

2. There being no allegation in the petition, as finally amended, setting out the market value of the entire tract of land, not merely that contiguous to the described lots, but also that contiguous to the abutting streets, before and after the grading, the trial court erred in overruling the demurrer attacking the petition for this reason.

Judgment reversed.

Jenhins and Lulce, JJ., concur.