Bentley v. City of Atlanta , 92 Ga. 623 ( 1893 )

Simmons, Justice.

Bentley sued the City of Atlanta for damages resulting from the raising of a bridge in a street, near to and adjoining his premises. On demurrer the court ruled that the declaration set forth no cause of action, and on objection by the defendant, disallowed two amendments offered by the plaintiff The declaration and the amendments are set out in the report prefixed to this opinion.

1. It was contended on behalf of the defendant that the plaintiff had no right of action, because he was a mere tenant of the premises alleged to have been damaged. There is no merit in this contention. A tenant, although he has no estate in the land, is the owner of its use for the term of his rent contract, and he 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. See 12 A. & E. Enc. of L. 719; Crowell v. Railroad Co., 61 Miss. 631.

2. It appears from the declaration that the bridge was raised by a railroad company whose line crossed the street under the bridge; and it was contended that the plaintiff, instead of suing the city, ought to have sued the railroad company. The duty, both with respect to the general public and the occupants of premises along the streets of a city, of keeping the streets free from permanent or long continued nuisances, rests primarily on the municipal government; and this duty cannot be evaded by urging the right and duty of a railway company to bridge its line at street crossings and maintain the bridges and crossings in proper condition. If the city authorities suffer a railway company to erect a bridge at a street crossing and maintain it, together with the approaches thereto, in such manner as to render the same a public nuisance, the city is liable' for the consequences just as it would be if the improper work had been done by the city itself. Certainly this is so where the law expressly gives the city control of the matter, as was the case here. The charter of the city, after prescribing the duty of railroad companies as to the erection and repair of bridges across their tracks or road-beds where the same cross the streets of the city, declares that the mayor and general council “shall have the authority to regulate the building and repair of such bridges in so far as to declare the general character of such bridge or repairs' suitable to be made, and to provide for the drainage, light and comfort of said bridge, and the street adjacent thereto or thereunder, and to provide for the least obstruction by supports and otherwise of any portion of the street practicable and consistent with safety. In case of the failure of any railroad or railroad company, after i’easonable notice to do so, to build or repair a bridge or the approaches thereto or otherwise, as provided above, said mayor and general council shall have the authority to do such building, repairing or putting in safe and comfortable condition, at the expense, with interest and costs, of such railroad or railroad company,” etc. Acts 1889, p. 819. On this subject see: Jones, Neg. Municip. Corp. §119. And see Elliott, Roads and Streets, p. 44 et seq. (1890); Dillon, Municip. Corp. (4 ed.), §§1027, 1037.

3. The declaration set forth a cause of action, and the court erred in disallowing the amendments offered, and m sustaining the demurrer. The question of the measure of damages was not made in the court below, and we do not deal with it. The demurrer was a general one and did not raise the question as to whether all the particular elements of damage alleged were good or bad. As some of them were good, there was enough to withstand such a demurrer. Judgment reversed.