Pause v. City of Atlanta

Atkinson, Justice.

The plaintiff occupied certain premises in the City of Atlanta, which were used by her in the business of keeping a restaürant and bar, and selling fish and oysters. She occupied the premises under a lease at a stipulated, monthly rental for an agreed term of three years, and upon an option, by mutual agreement of the lessor and lessee, to extend the same to a term of five years. Her place of business was well located and properly fitted up at considerable expense. While engaged in the conduct of this business under the lease in question, the municipal authorities of the City of Atlanta commenced the construction of a certain bridge, in the building of wbicb, under tbe plan adopted', tbe entrance to plaintiffs place of business would be and was in fact so far obstructed as practically to cut her off from the ordinary means of access to ber place of business, wbicb sbe bad previously enjoyed; and in addition to tbis, cut off tbe light and air from ber place of business, so as to render ber premises practically valueless for tbe purposes for wbicb they were leased. Before tbe day upon wbicb tbe door of ber place of business was actually obstructed by tbe progress of tbe contemplated work, her business, in consequence of tbe obstruction to tbe entrance to her restaurant, became so un- . profitable that sbe was compelled to abandon it, and to surrender tbe premises, in consequence of wbicb sbe sustained damage. Por tbe injuries thus sustained, sbe brought an action, and upon tbe introduction of evidence, wbicb, if admitted, might have justified tbe jury in finding tbe facts above stated to be true, sbe was nonsuited upon tbe ground that sbe bad shown no right of action against tbe city. In addition to tbe question made upon the motion for nonsuit, the plaintiff offered to-prove that sbe had made certain improvements upon tbe premises at a stated expense, and that in consequence of tbe injury complained of, these improvements were depreciated in value; and further offered to prove tbe volume of ber business; tbe profits derived from its conduct, the value of tbe movable property and loss on tbe same; all of wbicb testimony was excluded by tbe court.

1. In tbe consideration of tbe .questions made by tbe record in tbis case, for convenience of arrangement we will first address ourselves to tbe inquiry as to whether tbe plaintiff owned such an interest in tbe premises as would justify a recovery by ber, admitting, for tbe purposes of that inquiry, that the municipal authorities were otherwise liable; and we think that tbis question may be answered in tbe affirmative, upon authority of tbe ruling of tbis court in tbe ease of Bentley v. The City of Atlanta, 92 Ga. 623, in wbicb it is held, “that a tenant, although be has no estate in the land, is the owner of its use for the term of his rent contract, and can recover damages for any injury to such ■use occasioned by the erection and maintenance of a public ■nuisance in the street adjacent to or in the immediate neighborhood of the premises.” If a leasehold interest be sufficient to maintain such an action, it is certainly sufficient to maintain an action for damages sustained in consequence of torts directly affecting the value of the estate itself. A leasehold interest in premises for a definite, term is property within the meaning of that word as it is employed in paragraph 1, section 3, article 1 of the constitution of this ■State, in which provision is made against the taking or damaging of private property for public purposes without just .and adequate compensation being first paid. If a tenant be deprived of his leasehold interest in consequence of the •appropriation by the public to public uses of the property upon which his leasehold estate rests, it cannot be doubted that he is deprived of his property; and hence we conclude, ■that the holder of a lease has such an interest in premises as will enable him to maintain an action for damages resulting to his leasehold estate, sustained in consequence of •the construction of a duly authorized public improvement, whether such damage results from the negligence of the •municipal authorities, or otherwise.

2. The case of Tuggle v. Mayor and Council of the City of Atlanta, 57 Ga. 114, was decided prior to the adoption -of the constitution of 1877, and since, by the constitution of 1868, there was no prohibition against mere damage to •property without just compensation, the liability of the municipal corporation to an owner damaged in consequence of the construction of a bridge in a public street depended •upon the question as to whether or not the municipal authorities were negligent, and in consequence of their negligence inflicted an injury upon the property owner peculiar to himself, and not shared in by the general public;.and it was •properly held, under the lawr as it stood at that time, that the action could not be maintained, it not appearing that the municipal authorities were in fact guilty of any negligence in the premises. The case of Green v. The City of Atlanta, 67 Ga. 386, which was one involving the right of a property owner to recover consequential damages resulting from the change of a grade in a street, and as well the case of Campbell v. Metropolitan Street Railroad, 82 Ga. 320, which involved the right of a street railroad company to construct its railway along the line of the public-streets of a city, both arose subsequent to the adoption of the constitutional provision hereinbefore referred to, as it. appears in the present constitution of this State. In both of these cases it was ruled practically, that, without reference to the question of negligence,- if the city, in the progress of' ■a public improvement, or the railroad company constructing ; its railroad under authority of a public charter, in any way ■ damaged the property of a citizen, the latter, for such damages,.might maintain an action. While it is perhaps, unnecessary to cite authority for the proposition that an insertion of the words “or damaged,” in the constitutional provision above referred to, was intended to and did afford. to the private citizen an additional safeguard against the infliction of injuries by the public, it may not be unprofitable • to refer to some outside authorities upon the subject; and we therefore cite in that connection the case of' Rigney v. City of Chicago, 102 Ill. 64, which was afterwards cited approvingly in the case of Chicago v. Taylor, 125 U. S. Rep. 161. Elsewhere, as in the State of Georgia prior to the adoption of the constitution of 18IY, it was held, under-constitutional provisions which prohibited only the taking of property, that all such loss and inconvenience as result. from temporarily obstructing the use of public highways, whether by land or water, in consequence of improvements ■ by the public authorities, could not be made the basis of an action for damages; but in order to justify a recovery in such case, there must have been an actual, physical taking;-

and appropriation of private property. Northern Transportation Co. v. Chicago, 99 U. S. 635; Troy & Boston R. R. Co. v. Northern Turnpike Co., 16 Barb. 100; Plant v. Long Island R. R. Co., 10 Barb. 26. But in other States where constitutional provisions similar to the one in the present constitution of Georgia, which is now under discussion, have been construed, the rule has been stated, that for consequential damages traceable to the public, and which injuriously affect the property of the citizen, there may be a recovery, as distinguishable from those injuries which affect only the sensibilities or the business of the individual. Accordingly, the Supreme Court of Illinois, in construing a constitutional provision of force in that State similar to the one under consideration, pronounced as follows: “While it is clear that the present constitution was intended to afford redress in a certain class of cases for which there was no remedy under the constitution, yet we think it equally clear that it was not intended to reach every possible injury that might be occasioned by a public impirovement. There are certain injuries which are necessarily incident to the ownership of property in towns or cities, which directly impair the value of private property, for which the law does not, and has never afforded any relief. Por instance, the building of a jail, police station or the like, will generally cause a direct depreciation in the value of neighboring property, yet it is clearly a case of damnum absque injuria. So as to an obstruction in a public street —if it does not practically affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property, in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, tire common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law.” 102 Ill. 64-80. This rule seems to have been the one recognized and adopted in the English courts where damages are awarded in favor of a property owner where property has been “injuriously affected” by the construction of a public improvement, which term seems to have, been recognized as an equivalent of the expression “damaged,” as used in our constitution. See 2 Best & Smith, 605; Beckitt v. Midland Ry. Co., L. R., 1 C. P. 241; on appeal, 3 C. P. 82; McCarthy v. Metropolitan etc. Works, L. R., 7 C. P. 508; Hall v. Mayor of Bristol, L. R., 2 C. P. 322; East & West India Docks v. Gattke, 3 McN. & G. 155. The word “damage” embraces more than the mere physical taking of property, and is not restricted to cases where the owner is entitled to recover as for a tort at common law. 66 Cal. 492. It seems that this language is intended to cover all cases in which, even in the proper prosecution of a public work or purpose, the right of a person in property or the property itself is in a pecuniary way injuriously affected. 63 Texas, 467; 14 Neb. 550; 45 Ark. 429; 67 Ga. 386; 7 Col. 113; 10 Col. 403; 17 West Va. 396. The damages, therefore, that an individual may recover for injuries to his property need not necessarily be caused by acts amounting to a trespass, or by an actual physical invasion of his real estate; but if his property be depreciated in value by his being deprived of some right of user or enjoyment growing out of and appurtenant to his estate as the direct consequence of the construction and use of any public improvement, his right of action is complete, and he may recover to the extent of the injury sustained. C. & W. I. R. R. v. Ayers, 106 Ills. 511; East St. Louis v. O’Flynn, 19 App. Ct. Rep. (Ills.) 66. Accordingly it has been 'held that interfering with access to premises, by impeding or rendering difficult ingress or egress, is such a taking and damaging as entitles .the party injured to compensation under a provision for compensation where property is damaged. 22 Am. & Eng. Cor. Cases, 393; Cooley on Const. Limit. p. 690, note 3 on same page, and cases there cited. Compensation has been awarded for the laying of a railroad track in a street, the fee of which the abutter does not owm Campbell v. Metropolitan St. R. R. Co., 82 Ga. 321. Eor the laying of a cable road by the side of a horse railroad. Cooley’s Const. Limit, supra. The rule seems to be deducible from the decisions of the courts of other States, construing constitutional pro-visions similar to our own, that if the owner of property, because of the permanent physical improvement itself, suffers damages by reason of the permanent diminution in the value of his property or estate, as distinguished from mere personal inconvenience, he has a right of action for such damage; nor is it material whether the property damaged abuts directly upon the improvement, o-r is distant therefrom. In tire case of McCarthy v. Metropolitan Board of Works, L. R., 7 C. P. 508, the plaintiff resided and carried on business as a dealer in lime, brick, sand, ballast,, etc., on premises near a dock known as White-friar’s dock, which was a public dock on the Thames. The dock was separated from plaintiff’s premises by a public street 20 feet wide, and the distance from this street to the river along the dock was 352 feet. The dock was largely used by the plaintiff in the way of his business, but he had no right or easement in the dock other than as one of the public, nor was there appurtenant or otherwise belonging to his premises any other right or privilege in or to the dock. By reason of its proximity to the plaintiff’s premises and the access thereby afforded to and from the Thames, the premises were rendered more valuable to sell or occupy with reference to the uses to which any owner might put them. In the execution of the works authorized by the Thames embankment acts, a solid embankment was carried along the, foreshore of the Thames, thus permanently stopping up and destroying Whitfriar’s dock. By reason thereof access along the dock from the plaintiff’s premises to and from the Thames was prevented, and his premises were permanently damaged and diminished in value. Plaintiff recovered judgment in the Court of Common Pleas, which held his premises injuriously affected; and this decision was after-wards affirmed by the Exchequer Chamber and House of Lords. See 7 Appeal Cases, 259; Lewis on Eminent Domain, §227, p. 306, note 3. See other English cases there cited. In Rigney v. Chicago, 102 Ills. 64, it appeared that Rigney, the plaintiff, owned an improved lot on one street, which street was intersected at right angles by another at a point 220 feet distant from the plaintiff’s property. The city built on the intersecting street, over the street upon which plaintiff’s property was situated, a viaduct, so as to entirely prevent access to the intersecting street from the street upon which plaintiff’s property was situated, except by stairs. The evidence showed that the intersecting street was an important thoroughfare upon which horse-car lines were operated, affording communication with all parts of the city. N o change whatever was made in the street upon which the property of plaintiff abutted, either in front of his property, or elsewhere, but as the result of the construction of the viaduct, and cutting off access to the intersecting street, plaintiff’s property was damaged. The court there held, under a constitutional provision similar to ours, that the property -was damaged within the meaning of the constitution. Deferring to these cases, Lewis on Eminent Domain says: “They seem to settle the doctrine that an obstruction or interference with a public street or way need not necessarily be in. front of or contiguous to the property claimed to be affected thereby, in order to authorize a recovery.- It is sufficient if it is such an obstruction or interference as produces a diminution in the value of the property, as distinguished from, mere personal inconvenience to the owner.” Lewis on Eminent Domain, §227, p. 307, citing Caledonian Ry. Co. v. Walker’s trustees, 7 Appeal Cases, 259.

In considering tire questions made in this case, a distinction should be borne in mind between those cases where one seeks to recover because of the appropriation by the ■public to tire public use of private property, and damages to one’s property sustained in consequence of the construction of such public improvement, and that other class of cases in which, though one’s property be neither appropriated nor damaged, yet in consequence of the construction of such an improvement one suffers damage resulting from personal inconvenience, and consequent damage in the conduct of one’s business. In the former cases the x-ight of ■compensation is a matter of principle; the amount of ■damage, a mere matter of degree. However slight or however great one’s damage, may be, he is nevertheless entitled to compensation. In the latter class of cases something more must appear than mere damage or inconvenience- It must be made to appear that in the construction of such an ■improvement the municipal authorities have been guilty of negligence, omission of duty or negligent commission of an act authorized by law, in order to authorize a recovery. In the one case the constitution allows compensation because of the damage to property; in the other case the right of recovery rests upon the general law and depends upon the ■negligence of the offending corporation. Ordinarily municipal authorities judge of the means by which a contemplated public improvement will be accomplished, and if the municipal authorities adopt such means as in their judgment are best adapted to the accomplishment of the proposed purpose, they will not be liable, unless, in the execution of that purpose, by some act of negligence they inflict injury to the person, property or business of an individual in which the general public does not share. These principles are clearly deducible from, the three Georgia cases to which reference has hereinbefore first been made, and they seem to be borne out by the current of authorities elsewhere.

In determining the question now submitted for our consideration, it is not necessary for us to state the rule which will be adopted by this court where the obstruction is so-remote from the property of the person claiming to be injured thereby as to render it doubtful whether the damage-complained of may be fairly attributed to the obstruction itself, or to other and independent causes. In the present, case the property damaged in consequence of the public improvement, was directly affected by the improvement itself;, and hence we hold, that inasmuch as the plaintiff had a. property in the thing injured, sbe is entitled, under the constitutional provision of force in this State, to- which we-have hereinbefore referred, to recover the damage sustained by her.

3. It was insisted in the present case that the plaintiff was not entitled to recover, because she abandoned her lease-before access to her property was actually cut off by the projected public improvement. We do not think this is a. good reply to her demand; she had an existing estate in the-property, and when it became manifest to her that, according to the plan of the proposed public improvement, its-completion would result either in her total exclusion from her premises, or make the same so inconvenient as to render it valueless to her for the purposes for which it was leased, she could properly abandon her lease, and vacate the premises, whenever in the execution of the projected plan of' construction the work had so far progressed as virtually to destroy her lease by preventing the enjoyment of her estate; and a mere surrender by her under such circumstances will not be deemed a voluntary abandonment of the premises; she would be nevertheless entitled to recover for her unexpired time the market value of her premises for-rent.

4. The measure of her damages is the injury to her property which is injuriously affected by the public improvement; in arriving at that damage, neither the profits in the business conducted on the premises, nor the cost to the tenant of fixtures and improvements placed therein, nor the articles purchased for the purpose of enabling the lessee to conduct the business, nor diminution in the value of fixtures, improvements or articles such as are removed by the lessee, can be recovered as damages; but the increased value of the premises for rent in consequence of the putting in of such fixtures and improvements may properly be considered in computing the damages to the leasehold estate.

5. In such a case the profits of the business are not recoverable by way of damages, but evidence that the business was profitable is admissible to illustrate and throw light upon the value of the premises for rent.

6. Nor was it competent upon the part of the leaseholder to prove that she had an option upon the premises for a term of years longer than three, it appearing that the option was not to be exercised at her will alone, but was dependent likewise upon the concurrence of the landlord. Such testimony would be irrelevant, as, under the peculiar terms of the option claimed in the present case, the leaseholder acquired no interest, but only a privilege of making a new contract with her landlord at the termination of her lease, the new contract being dependent upon the consent of the landlord; and this she would have had the right to have done with or without the alleged option. It having, therefore, no market value, it ought not to have been considered, and was properly rejected by the court as irrelevant.

Upon the main questions in the ease, the court erred in directing a nonsuit, and the judgment is Reversed.