Muecke v. City of Macon

Jenkins, P. J.

(After stating the foregoing facts.) Plaintiff contends that the evidence objected to was illegal and that under the rulings made by the Supreme Court in Estes v. Mayor &c. of Macon, 103 Ga. 780 (2) (30 S. E. 246), and City of Atlanta v. Nelson, 142 Ga. 324, 325 (4) (82 S. E. 899), the charge was erroneous, in that the subsequent improvements, although embraced in the original general scheme of improvement, referred to in the evidence and by the charge, were, at the time the grade was changed, mere prospective happenings, and were too uncertain to be considered in fixing the value of the property at that time or shortly thereafter. This evidence and this excerpt from the charge were further excepted to, on the ground that they authorized the jury to determine the present value of the properly instead of its value at the time the grading was done or shortly thereafter. We do not think that the evidence objected to was improperly admitted, or that the excerpt from the charge was erroneous for any of the reasons assigned. It does not appear that the excerpt from the charge related at all to the question as to when the value of the property was to be determined. In other portions of the charge the judge had fairly and fully instructed the jury on the proper measure of damages. Here he was not dealing with the question as to the time when the market value should be determined, but was giving expression to the idea that such prospective improvements with reference to this particular street, as embodied in the original and general plan of the city, could be considered as affecting the value of the property at the time of the alleged injury. Nor do we think that the evidence was inadmissible or the charge erroneous for the other reason assigned, and which is more fully stressed in the brief for the plaintiff. This case differs materially in its facts from that of Estes v. Mayor &c. of Macon, supra. Here the testimony related to improvements made in the fulfilment of the city’s general plan of improvements of this particular street, of which plan the grading was but a part. In the Estes case it does not appear that the improvements related to a co-ordinate plan of which the grading was a part. The opinion in that case points out that the case was tried several years after the change of grade, and the witness for the city refers to the “present” plan of the city. The plan related to the general city improvements, and not to the particular street involved, as in this case. It appears also in that case that such general city plan had not in fact been in any wise applied to the particular street in question, “nor was there any evidence of any intention on the part of the authorities to do so.”

Judgment affirmed.

Stephens and Bell, JJ., concur.