Brown v. City of Atlanta , 167 Ga. 416 ( 1928 )

Gilbert, J.

“No person shall be deprived of life, liberty, or property, except by due process of law.” Const. Ga., art. 1, sec. 1, par. 3, Civil Code (1910), § 6359. It is insisted that petitioner is about to be “deprived” of his property by the defendants without affording him “due process of law.” We shall first undertake to determine whether the petitioner, under the facts alleged, is about to be “deprived” of his property. If he is not, then there will be no necessity for considering the question of due process. It is not contended that the city is about to “deprive” petitioner of his private property abutting on the street, but that the city is merely proceeding to temporarily obstruct and interfere with the right of ingress and egress to and from such property. When its present street improvements have been finished, the city will leave open and unobstructed the street and sidewalk on which petitioner’s property abuts, but the grade will have been changed and the sidewalk narrowed. In fact it is the contention of the city that the street improvements will vastly enhance the value of petitioner’s property. Whether that contention is justified future events alone may determine. Does the temporary obstruction of the right of ingress and egress “deprive” petitioner of his private property? We unhesitatingly decide that it does not. “The right temporarily to obstruct a street springs from reasonable necessity, and is limited by it, and those who exercise the right must so conduct themselves as to discommode others as little as is reasonably practicable, and remove the obstruction or impediment within a reasonable time, having regard to the necessities and circumstances of the case; and when they have done this, the law holds them harmless.” Simon v. Atlanta, 67 Ga. 618, 622 (44 Am. R. 739). We think it has been uniformly held that a temporary obstruction in a street does not .deprive the abutting owner of his property; and of course the word “property” as here used includes any easement in the street for ingress and egress.

If the building of a viaduct along a street made ingress and egress permanently less convenient, the result would be the same. It was so decided in a case arising out of the construction of the Forsyth Street viaduct. “Though the erection of such a bridge may have rendered less convenient the means of ingress to and egress from an existing building upon an abutting lot, this was not a 'taking’ of property within the meaning of that clause of the constitution which declares that ' Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.’” Hurt v. Atlanta, 100 Ga. 274 (2), 276-278 (28 S. E. 65). That decision also negatives the claim that the defendants are trespassers. In the Hurt case one contention was that the city was a trespasser, because it had proceeded to erect the bridge without giving any notice of its intention to do so or taking any steps to appoint appraisers to assess damages. The same contention is made here. On that point the court, after a thorough consideration, declared: “The question whether the mayor and general council were, in this instance, legally bound to appoint appraisers and give Mrs. Hurt notice to do so, in order that the persons so selected might c proceed to assess the damages sustained, or the advantages derived,5 turns upon the true meaning of the word ‘ damages5 as here used. It is obvious that ‘to open, lay out, widen2 or cstraighten5 a street necessarily involves the taking of land not hitherto used for street purposes; and therefore, as to any or all of these matters, the damages contemplated by the act can easily and naturally be held to mean compensation to landowners for property thus taken. But it was insisted that the municipal authorities were also empowered to ‘otherwise change5 streets; that the words just quoted were designed to meet just such a case as the present, because the building of a structure like the Forsyth Street bridge was ‘ otherwise changing5 that street, and that, accordingly, the act of 1874 contemplated the assessment and allowance of incidental damages in a case like this, even though there was no actual taking of a citizen’s property. It will be observed that the provisions of that section of the act of 1874 with which we are now dealing were taken from section 11 of the act of 1859, incorporating the Town of Warrenton and amending the charter of Atlanta. Acts of 1859, p. 215. In order to ascertain the kind of ‘ damages5 referred to by these acts, and for what the same were to be allowed, the acts themselves must be construed in the light of the law as it was understood when they were passed. Prior to the ratification of the present constitution, a municipal corporation, proceeding regularly and within the scope of its authority, was not liable for consequential damages resulting to property owners from paving, grading, or otherwise improving its streets. The question whether it could be held liable for such damages was incidentally involved in the ease of Markham v. Mayor & Council of Atlanta, 23 Ga. 402; and though not then decided, Judge Lumpkin intimated very strongly that it should be answered in the negative, and cited authorities supporting that conclusion. In Mayor & Council of Rome v. Omberg, 28 Ga. 46 [73 Am. D. 748], this same question arose, and it was distinctly decided that the municipality was not liable, the court holding that though the plaintiff had been injured by the grading of a street, yet, as no part of his land had been touched, it was damnum absque injuria. The first of these two cases was decided at the August term, 1857, of this court; and the second at the March term, 1859. The act amending Atlanta’s charter was approved on the 12th day of December following. So it was settled law, at the time of its passage, that consequential damages in cases of this character were not allowable; and.if the General Assembly had desired to change the established rule, it would have done so. Certainly, in the absence of express words showing a contrary intention, it is safe to conclude that the word c damages, ’ as used in the 11th section of this act, was not designed to embrace compensation for incidental injuries to realty which the highest court in the State had declared could not be- recovered. The doctrine of the Omberg case was reaffirmed in Roll v. City Council of Augusta, 34 Ga. 326, decided in 1866, and recognized in Mitchell v. Mayor & Council of Rome, 49 Ga. 29 [15 Am. R. 669], decided in 1873. The act of 1874, establishing a new charter for Atlanta, merely retained the provisions of the act of 1859; and, though enacted after all the foregoing decisions had been rendered, made no attempt to broaden or enlarge the settled meaning of the word ‘ damages ’ as therein employed. Again, in City of Atlanta v. Green, 67 Ga. 386, and Campbell v. Metropolitan Street Railroad Co., 82 Ga. 325 [9 S. E. 1078], this court approved as correct the doctrine of the cases above cited upon this question. In the Green case it was announced that the rule had been changed by that paragraph of the present constitution which declares, not only that private property shall not be taken, but also that it shall not be damaged, for public purposes, without compensation. But we are now striving to ascertain the meaning of the word damages ’ as employed in acts passed before the constitution of 1877, and the conclusion seems irresistible that the application of this term was confined to cases in which there was an actual taking and appropriation of property itself.”

This court in the Hurt case also said: “There is little difficulty in holding that Mrs. Hurt was not entitled to damages upon the idea that the city took a portion of her property. The ‘ taking’ referred to in the constitutional paragraph under consideration means a physical, tangible appropriation of the property of another. The cases above cited all bear out this idea; indeed, they are inconsistent with any other. If rendering ingress to and egress from a lot or building is ‘ taking ’ property from the owner, there is, in this respect, no substantial difference between the former constitutions of this State and the present one, and much learning and research have been vainly expended in determining the question dealt with in these cases and the authorities which they cite; for if a ‘ damaging ’ of this kind is the same thing as a taking, ’ there was no occasion for so much discussion of the question of liability. Beyond doubt, an easement is, in a sense, ‘ property ; ’ and there are, perhaps, cases where the appropriation of a mere easement, — such, for instance, as a railroad right of way,— might be held to be a taking of property. Even then it would be a nice question as to whether such an appropriation should not more properly be termed a ‘ damaging ’ than a ‘ taking. ’ In either event compensation would have to be paid, and that is the material thing in such a matter. In the present case, however, treating Mrs. Hurt’s right of ingress and egress to her building as an easement, the destruction or impairment of the same can not, we are satisfied, be regarded as a taking of her property within the meaning of the constitution. There is a broad distinction between cases of this character and those in which possession of, and dominion over, private property is taken for public use. ’ Moore v. City of Atlanta, 70 Ga. 612.”

This ruling is well-nigh universal. The case of Sauer v. New York, 206 U. S. 536 (27 Sup. Ct. 686, 51 L. ed. 1176), arose out of the construction of a viaduct and the claim of an owner of abutting property for damages. The Supreme Court said, in part: “The State courts have uniformly held that the erection over a street of an elevated viaduct, intended for general public travel and not devoted to the exclusive use of a private transportation corporation is a legitimate street improvement equivalent to a change of grade; and that, as in the case of a change of grade, an owner of land abutting on the street is not entitled to damages for the impairment of access to his land and the lessening of the circulation of light and air over it. Selden v. Jacksonville, 28 Florida, 558 [10 So. 457, 14 L. R. A. 370, 29 Am. St. R. 278]; Willis v. Winona, 59 Minnesota, 27 [60 N. W. 814, 26 L. R. A. 142]; Colclough v. Milwaukee, 92 Wisconsin, 182 [65 N. W. 1039]; Walish v. Milwaukee, 95 Wisconsin, 16 [69 N. W. 818]; Home Building Company v. Roanoke, 91 Virginia, 52 [20 S. E. 895 27 L. R. A. 551] (cited with apparent approval by this court in Meyer v. Richmond, 172 U. S. 82, 95 [19 Sup. Ct. 106, 43 L. ed. 374]); Willetts Manufacturing Co. v. Mercer County, 62 N. J. Law, 95 [40 Atl. 782]; Brand v. Multnomah County, 38 Oregon, 79 [60 Pac. 390, 62 Pac. 209, 50 L. R. A. 389, 84 Am. St. R. 772]; Mead v. Portland, 45 Oregon, 1 [76 Pac. 347], affirmed by this court in 200 U. S. 148 [26 Sup. Ct. 171, 50 L. ed. 413]; Sears v. Crocker, 184 Massachusetts, 586 [69 N. E. 327 100 Am. St. R. 577]; (Semble) DeLucca v. North Little Rock, 142 Fed. Rep. 597.” Quoting from Willis v. Winona, supra, the Supreme Court in the Sauer case continues: “ 'The doctrine of courts everywhere, both in England and in this country (unless Ohio and Kentucky are excepted), is that so long as there is no application of the street to purposes other than those of a highway, any establishment or change of grade made lawfully, and not negligently performed, does not impose an additional servitude upon the street, and hence is not within the constitutional inhibition against taking private property without compensation, and is not the basis of an action for damages, unless there be an express statute to that effect. That this is the rule, and that the facts of this cáse will fall within it, is too well established by the decisions of this court to require the citation of authorities of other jurisdictions. ’ ” The charter granted by the General Assembly to the City of Atlanta provides: “The said Mayor and General Council shall have full power and authority to open, lay out, to widen, straighten, or otherwise change streets, alleys, and squares in the City of Atlanta.” Code of Atlanta, § 328. Chief Justice Bleckley, speaking for the court in Trustees v. Atlanta, 93 Ga. 468, 474 (21 S. E. 74), with reference to that charter provision, said: “This grant is comprehensive enough to embrace the alteration of a street in any respect, whether on, below, or above the surface of the earth. And the power to open streets embraces the power to keep them open, not only on the surface but over and above the same indefinitely or, at all events, to such height as may be either necessary or reasonably desirable for all the purposes of a street, both with reference to its use by the general public and to its use locally by those residing or having property adjacent thereto.”

It would thus seem to be settled that the City of Atlanta has clear and undoubted legal right to raise the grade of Hunter Street as it purposes to do. Moreover, the street improvement at that point is but a small part of a comprehensive plan of public improvements, the main object of which is to construct two bridges or viaducts spanning the tracks of the Western & Atlantic Railroad on Pryor Street and Central Avenue. The General Assembly by resolution enacted in 1925 expressly conferred authority upon the city to construct the improvements mentioned. Ga. Laws 1925, p. 1596. The elaborate plans worked out by the city authorities have been approved by the representatives of the State of Georgia and the lessees of the said railroad. In order to accomplish the primary purpose on Pryor Street and Central Avenue, changes in other streets, affecting grades and similar details, are essential.

In City of Atlanta v. Holliday, 96 Ga. 546, 554 (23 S. E. 509), the question arose as to the right of the city to remove shade-trees along sidewalks. This court said: “Where the fee in the street itself is vested in the city authorities, as was the case in Castleberry v. City of Atlanta, 74 Ga. 164, an individual acquires no such personal right in the prese rvation of shade-trees standing thereon as would enable him to interfere by injunction with the city authorities in the exercise of a discretionary power of removing such trees as obstructions upon the public streets. He has a right to the maintenance of the street as a public highway unobstructed, but he has no legal right to the continuance in the street of a shade-tree after the city authorities have concluded to remove it as an obstruction. In such cases the control of the streets by the city authorities is absolute. In the present case, however, it is conceded that the fee to that portion of the street and sidewalks in controversy is vested in the abutting-lot owners. The city has upon them an easement in the nature of a right of way. The city authorities, in the first instance, by virtue of the dominant servitude imposed in favor of the city by the owners of the land, would have had the right to appropriate absolutely the entire width of the whole street to the uses of a public highway, removing therefrom all shade-trees or other obstructions that might have been therein. It had the power to elect the extent to which this servitude should be imposed, and that part of the street not absolutely appropriated by the city under its easement as a right of way remained in the abutting-lot owners by virtue of'their ownership of the fee. When, therefore, the city authorities, upon the opening of this street, allowed these trees to remain, that portion of the street actually covered by their trunks was unappropriated by the city and remained in the lot owners. The trees growing upon those portions of the street not appropriated were the private property of the lot owners, but held subject to the exercise by the city of its right to extend its dominant easement over, the ground, occupied by them, whenever, in the judgment of the city authorities, it became necessary for the public necessity or convenience that this be done.” (Italics ours.) Whether the city or the abutting-property owner owned the fee in Hunter Street at its intersection with Pryor Street, extending from the property line on one side of the street to the property line on the opposite side, including sidewalks, the city admittedly possessed a dominant easement. This easement was not restricted to definite widths for sidewalks and for vehicular travel. The city had the right to change the grade; that is, raise or lower the street surface, and it had the right to narrow or widen the sidewalks whenever “it became necessary for the public necessity or convenience that this be done.” Under these rulings, it must be held that the city is not exceeding its charter powers. As was further said in the Holliday case: “The public convenience which will justify such a proceeding must amount to a public necessity. Whether a case of public necessity arises, as we have before observed, is a matter primarily for determination by the city authorities. If they exercise a wise discretion in regard to the matter, the courts are without power to control them.” In the present case the city denies that the street “is any part of the property of the plaintiff, as an easement or otherwise.” The petitioner neither alleges nor proves that he has any title to the fee in the street. He claims an easement for the purpose of ingress and egress.

Another provision of our constitution declares: “Private property shall not be taken or damaged, for public purposes, without just and adequate compensation being first paid.” Art. 1, sec. 3, par. 1, Civil Code (1910), § 6388. This clause is not pleaded or relied upon by petitioner, but may be considered in arriving at a proper meaning of the words “taken” and “damaged.” The meaning of the words “taken” and “damaged,” as used in this section, has been often considered by the courts, and the discussions are illuminating, in connection with' the meaning of the word “deprived” in the due-process clause. Of course if property is not “taken” or “damaged” by a street improvement, the owner is in no sense “deprived.” “Where an owner continues in the use and enjoyment of his property and property rights after the completion of a public improvement to the same extent and for the same purpose as before, his property has not been ‘ taken ’ within Const. art. 1, § 22, providing that private property shall not be taken or damaged for public use without compensation, and it can not be ‘ damaged ’ within that provision except by the invasion of a theoretical legal right.” Salt Lake City v. East Jordan Irr. Co. 40 Utah, 126 (121 Pac. 592, 596); 1 Words & Phrases (2d S.), 1197. The relief sought, in this case is by the drastic remedy of injunction which would stay vast public improvements, and where the chief complaint is against a great municipality, amply able to respond in damages if it should be found that plaintiff’s property has been actually damaged in such way as to cause a legal liability on the part of the city.’

In Moore v. Atlanta, 70 Ga. 611 (3), (4), it was held: .“If any owner of property be damaged by the grading of a street so as to lessen the pecuniary value of such property, he may recover damages for such injury to his freehold. That damage will be measured by the decrease in the actual value of the property. Increase of value resulting from such improvements may be set off against the damages proved, the right of recovery turning in each case- on the decreased pecuniary or market value of the property caused by the grade. The grading of streets should not be stopped, and extensive municipal improvements prevented by injunction, because of damage which would result to the owner of a lot bordering on the street. There is a broad distinction between cases of this character and those in which possession of, and dominion over, private property [italics ours] is taken for public use, like Chambers v. Cincinnati and Georgia Railroad, 69 Ga. 320." In the opinion in the Moore case the court said: “The stoppage of all the improvements of the city by the stern writ of injunction js, another and vastly more important question. Has he or any other citizen the 'right absolutely to stop the entire system of grades of a whole street or of two streets, because his property will be damaged if the contemplated improvement, in the judgment of the authorities, be carried into effect ? Is it not better that one man’s property be incidentally damaged than that the city authorities be absolutely prohibited from grading the street? Is it not more in harmony with all law and reason that this be so, especially when whatever damage the one man sustains the municipality will be made to pay ? It might damage the one man one thousand dollars to make the contemplated grade; it might damage the march of improvement in a great and growing city millions of money not to make it.” The Moore case, on the request for a review, was reaffirmed in Fleming v. Rome, 130 Ga. 383 (61 S. E. 5), and in Silvey v. Georgia &c. Co., 137 Ga. 468 (73 S. E. 629). We are not unmindful of the case of L. & N. R. Co. v. Merchants &c. Bank, 166 Ga. 310 (143 S. E. 506). That case involved damages to private property by a commercial steam railroad. Such damages stand upon a different footing from that of damages for public purposes in the ease of a municipality or street railway. In Athens &c. Co. v. Athens Foundry, 129 Ga. 393, 399 (58 S. E. 891), this court said: “But commercial steam railroads receive legislative sanction to use a city’s streets from altogether different considerations than those which apply to street railways.” In the opinion will be found an elaborate discussion of the distinctions just made.

Nor have we overlooked the case of Brown v. East Point, 148 Ga. 85 (95 S. E. 962) where an injunction was sought to prevent the municipal authorities from reducing the width of a sidewalk. The facts in that case are not reported in the published volume, but inspection of the original record reveals that there was no question of the sidewalk being included in the original street or highway. The contention was that the sidewalk had either never been dedicated to the public use, or, if so, the dedication was limited to sidewalk purposes. We think we have shown above that petitioner has not been deprived of his private property in the sense that the word “deprived” is used in the due-process clause of the constitution. The petitioner shows that he paid to the city an amount assessed against him as an abutting owner to cover the cost of the sidewalk and a portion of the cost of the paving on the street proper. This payment did not give him any title to or control over such pavements or the right to have the respective pavements remain as laid. Whenever there arose a reasonable public necessity therefor, the municipality which possessed the dominant easement could make changes within legal and constitutional bounds. The changes here proposed are within such bounds.

The second and third headnotes do not require elaboration.

Judgment affirmed. All the Justices concur, except Bussell, O. J., who dissents.