City of Atlanta v. Woolley & Co.

Gilbert, J.,

dissenting. Woolley & Company sought to recover damages against the City of Atlanta, for injury to its leasehold on property abutting on Madison Avenue, where it conducted the business of selling grain and other produce. The damages are alleged to result from the following: (a) Water ran into its storehouse and damaged the stock of merchandise, (b) The good will of its business was seriously impaired, (c) Its business was destroyed, (d) Its leasehold interest was greatly lessened in value. The City 'of Atlanta filed a general demurrer; also special demurrers to each part of the petition set out above.

The city had the legal right to close Madison Avenue temporarily, for the purpose of widening and grading the street. If injury resulted to the plaintiff, its right 'to recover would depend on whether the public street was reopened within a reasonable length of time. If there was an unreasonable delay, the city would be liable; otherwise not. This test is applicable to the allegations in the petition designated (b), (c), and (d) in the above statement. The petition does not allege any unreasonable delay. The court properly sustained these special demurrers; and therefore the allegation as to damage, to which there was a special demurrer, can not be considered in passing upon the assignment of error on sustaining the general demurrer, which was” also properly sustained. Tt follows that the judgment of the Court of Appeal's should be reversed.