City of Atlanta v. Hunnicutt & Payne , 95 Ga. 138 ( 1894 )

Atkinson, Justice

The official report filed in this case sufficiently states the facts necessary to a proper understanding of the questions made.

1. We think the motion for a nonsuit was properly overruled. We think the testimony showed beyond serious controversy, both that the land alleged to have been taken as the route or right of way of the sewer in question was taken by the defendant, and that the same was appropriated under its direction. It was shown that this sewer was constructed by hands employed by the defendant’s agents, and working under their direction. It was shown that for this identical sewer an assessment was levied against the landowners whose land was appropriated for their proportionate share of the cost of the sewer in question. It was shown that, upon a demand made by the duly authorized agent of the defendant, the landowners paid this assessment. So that, even if there were no affirmative evidence of the fact that the land in question was appropriated by the defendant for the construction of this sewer, this subsequent assessment levied and this subsequent demand for the payment by the owners of the land of their proportionate share of the cost of this sewer affords the strongest possible inferential evidence of an appropriation by the defendant of the land in question for sewer purposes. Therefore, the refusal to grant the nonsuit upon the ground herein stated was correct.

2. The defendant moved a nonsuit upon the further ground, that the plaintiffs’ own testimony showed that after the construction of the sewer they voluntarily paid the amount of the assessment against their property on account of the construction of the sewer, and made no objection to the construction thereof at the time it was being built. It was insisted that upon these facts the court was bound to presume conclusively that if the plaintiffs had a just demand for compensation by reason of the appropriation of their premises, they had abandoned their claim, and the courts should hold the plaintiffs estopped by their conduct. ■ Estoppels are never favored by the law. They arise only in cases where parties upon the record make admissions adverse to their interest and upon which the courts have acted, or they arise in those cases where in dealings with each other one of the parties by his conduct has so induced another to act to his prejudice as that the latter will be seriously affected if the former be permitted to repudiate his act. The facts upon which these presumptions arise must be clearly proven. The property of a private citizen cannot be taken for a public use without just compensation being first paid. It is the right of a person whose land is being so appropriated to demand compensation in advance of appropriation, but the mere existence of this right cannot in any sense cause a failure to exercise the same to operate as a forfeiture of the right. The owner may well forego the payment in advance or the assessment in advance of his damages, without forfeiting the right in an ordinary suit ultimately to recover- the value of his premises thus appropriated. This right to the common law remedy for the recovery of damages for the wrongful appropriation of one’s property is one that inheres in our very system of laws, and, unless the same be expressly superseded by some statutory enactment providing a special remedy, the latter will be presumed to be merely cumulative of the former, and the owner may have his election as to which remedy he will adopt. The city code of Atlanta provides: “That in case of any sewer or sewers or parts of the same being built or laid over or through private property, if the owner of such property claim damages for the occupation of said lands by such sewer and construction of the same thereon, such owner may, within thirty days after the adoption of an ordinance for the construction of the same thereon, give notice of such claim; but a failure to give such notice shall in no wise affect or prejudice the right of such owner to bring suit for damages sustained. But on giving notice of such claim for damages as aforesaid, assessors shall be appointed to assess damages to said land by reason or on account of the construction of any such sewer through or upon the same; said assessors to be appointed, notice given and their award made as in cases of property taken for opening, widening or straightening streets under the charter and laws of said city.” Thus it will be seen, that not only does the act in question recognize the existence of the right to maintain the form of action instituted in this case, but expressly declares that the special remedy by assessment according to the method prescribed in that act shall in no manner operate against the plaintiffs’ right to recover damages. The plaintiffs’ right to recover damages would only be perfect when the appropriation was complete, and it cannot therefore in any just sense be said that, because' they did not object to the completion of the very work upon which their right of action ■would depend, they in consequence have no cause of action. We think the court properly refused the non-suit upon this latter ground.

3-4. The construction of a sewer upon the land of , another involves, to a certain extent, an appropriation of that land to the use of the public. It involves the appropriation of an easement in the premises, and the easement created by the act of appropriation may be of such a character as to amount to a practical appropriation of the fee. For the appropriation of his' premises to this public use the owner is entitled to compensation in damages, and, under the city charter of Atlanta, if there be a corresponding advantage to his other property lying adjacent, such advantage, if capable of being estimated in money, may be set off" against the damages allowed for injuries to his property resulting from the building of the sewer. As to the property actually appropriated and covered by the sewer, the owner would he entitled to have its value allowed without any deduction because of any supposed advantage to that particular piece of property. . See Smith v. City of Atlanta, 92 Ga. 119. In the assessment of damages, however, it is appropriate that the jury should take into consideration the nature of the easement, the character of the occupancy, the extent of the appropriation; to consider whether or not, even though partially appropriated to the public use, it may not still be capable of being applied to the private advantage of the owner. All of these are considerations which should enter into and determine the jury in their assessment of damages. The charge of the court we think fairly submitted this question to the jury. The verdict is in perfect harmony with the preponderance of the sworn testimony in the case; and in addition thereto, we find from an inspection of the record that, by consent of counsel for the respective parties, the jury went out, attended by a bailiff and chaperoned by some of the parties or their representatives, and made a careful examination of the premises, observed the extent of the appropriation of the land, estimated the damages and fixed them at the sum represented by the verdict in this case. So that, even if we were inclined to look critically into the question as to whether the damages are excessive, it would be impossible to reach an intelligent conclusion in regard thereto, this court being unable to say how far and to what extent the judgment of the jury was predicated upon what they saw rather than upon what they heard. We are fully persuaded that the verdict is right, that no error of law was committed upon the trial; and the judgment of the lower court is therefore Affirmed.