Smith v. Floyd County , 85 Ga. 420 ( 1890 )

Bleckley, Chief Justice.

The code, in §3446, expressly recognizes the right of a plaintiff to recommence his suit on the payment of costs, after he has been nonsuited in a previous action. And §2932 saves his right of action for six months as against the statute of limitations. This court has recognized the right to sue again after nonsuit in Langston v. Marks, 63 Ga. 435, and Stirk v. R. R. Co., 79 Ga. 495. The apparent doubt entertained in Greenfield v. Vason, 74 Ga. 126, is of no significance. Nor is the case of Kimbro v. R. R. Co., 56 Ga. 185, an authority upon the question; for that case dealt with a direct adjudication upon the cause of action as set out in the declaration, and had nothing to do with any failure to support the declaration by evidence, which in this State is the ordinary ground for awarding a non-suit. A direct decision upon demurrer to the effect that the plaintiff' by his pleadings sets forth, no cause of action (not merely that a good cause is defectively sot forth) will constitute a bar to a subsequent action. To this effect are several cases in our reports, such as Jordan v. Faircloth, 34 Ga. 47; Gray v. Gray, Id. 499; Black v. Hunter, 27 Ga. 40; McGinnis v. The Justices, 30 Ga. 47; and Smith v. Hornsby, 70 Ga. 552. The question as to nonsuit is controlled for us by the two sections of the code above cited; and there is much outside authority in harmony with them, though much also which seems to look in a different direction. Amongst the cases holding that a nonsuit is no estoppel, see Homer v. Brown, 16 How. 354; Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121; Bucher v. R. R. Co., 125 U. S. 505. For a broad survey of the question on both sides, see Bigelow on Estoppel, 52; 1 Herman on Estoppel, 295; Wells on Res Adjudicata, 375. In the present case'the facts touching the non-suit are set forth in the plaintiff’s declaration, and for that reason the ruling in Killen v. Compton, 57 Ga. 63, which holds that a former recovery is not available by mere motion, does not apply.

2. The constitution (Code, §5024) declares: “Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” According to the declaration, the county of Floyd constructed an embankment and trestle-work as an approach to a public bridge, thereby changing the grade of the street and rendering it impossible for vehicles to pass from the street to the plaintiff’s adjacent lot and from the lotto the street. The lot “is injured and damaged in that it is placed below the street and is inaccessible thereto.” The damage is laid at $800. The legislature has made no provision for assessing such damages, but the right to have then paid is expressly declared by the constitution. The county, by section 491 of the eo*de, is made a corporation and declared liable to suit. The code, in section 3250, says : “ For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other.” And by section 2243 the code declares that, “for every injury done by another to person or property, the law gives a right to recover and a remedy to enforce it.” By the constitution (Code, §5141) the superior court is invested with jurisdiction in all civil cases, with certain exceptions, and this case is not within any exception. We thus have a constitutional right, an injury affecting that right, a court of competent jurisdiction, a defendant declared subject to suit, and a provision for the appropriate remedy. What room is there for doubt that the action is maintainable ? On general principles, an ordinary action at law, where no specific remedy is pointed out by statute, is available. Lewis Em. Dom. §624. The constitution (Code, §5190) in express terms broadens the taxing power which the legislature may confer upon counties, sufficiently to embrace all expenses for constructing and maintaining bridges and roads. No obstacle, therefore, exists to raising revenue for paying the damages which may be recovered in this and all similar actions. The cases heretofore ruled by this court, such as Smith v. Wilkes and McDuffie Counties, 79 Ga. 125, and County of Monroe v. Flynt, 80 Ga. 488, holding that counties are not subject to suit except in cases expressly provided for by statute, are not inconsistent with what we now decide, inasmuch as the supposed causes of action involved in those cases were not within the terms of the constitution. The violation by a county of a constitutional right of the citizen must by necessary implication raise a cause of action in favor of the citizen against the county, unless some means of redress other than suit has been afforded ,by the legislature. Had the plaintiff’s property been damaged in the mode alleged in his declaration, prior to the constitution of 1877, whether done by a city or a county, he would have had no right of action (City of Atlanta v. Green, 67 Ga. 386); but under that constitution, cities, counties aucl all other public organizations are denied any power or right to cause such damages for public purposes without making compensation. In this respect they are all upon an equal footing, and there is no reason for holding a county exempt from, suit for acts done by it for objects within its legal competency, when a city, for like acts done within its legal competency, would not be exempt. The constitution is no'less directly applicable to the one than to the ether. Nothing appears in the declaration indicating that the county was not exercising its legitimate functions in doing the work complained of, or that the damage resulted merely from the improper execution of the work.

3. In holding that the declaration sets forth a cause of action, we are to be understood as sustaining it not for the purpose of treating the work or its results as a nuisance to the plaintiff’s premises, but only for the purpose of recovering damages for the exercise of the power of eminent domain. The work done is to be treated as rightful in all respects save in the omission to pay compensation. And the measure of compensation is the actual depreciation in valúe (in the market value) of the plaintiff’s premises, resulting from the work done and its effect upon the property. City of Atlanta v. Green, 67 Ga. 386; Chicago v. Taylor, 125 U. S. 161. Such is the measure contemplated by this court, though perhaps not distinctly announced, in Campbell v. Metropolitan R. Co., 82 Ga. 320.

The court erred in dismissing the action.

Judgment reversed.