Roughton v. City of Atlanta

Lumpkin, P. J. The sole question which this case presents for ■determination is whether or not the petition filed by the plaintiff was capable of withstanding a general demurrer. We hold, without hesitation, that it was. , 1. If, as alleged, the city undertook to change the grade of one ■of its streets by making “ a fill on the front end of plaintiff’s lot,” and as a consequence his fence was damaged and his premises rendered less valuable, his right to compensation for the injury thus sustained is beyond question. City of Atlanta v. Green, 67 Ga. 386. In such a case the measure of damages is the difference between the market value of the property injuriously affected, before .and after the change in the grade of the street was made: City Council of Augusta v. Schrameck, 96 Ga. 426; Hurt v. Atlanta, 100 Ga. 274, 281. 2. In so far, however, as the plaintiff sought to recover damages for the tortious acts of the city’s servants in subsequently undertaking, without his knowledge or consent, to “ jack up ” his house so that it would be on a level with the fill made in the street, we are equally confident that the petition did not set forth a cause of' action. We fully recognize the doctrine that a municipality is subject to the rule of respondeat superior when, in the prosecution of ■a public enterprise within the scope of its corporate powers, its au [950] thorized agents negligently or unskillfully conduct the work in hand, so that damage is done to adjacent private property. See, in this-connection, Barfield v. Macon County, 109 Ga. 386, and cases cited. But where “the act complained of necessarily lies wholly outside-of the general or special powers of the corporation as conferred in its; charter by statute, the corporation can in no event be liable to an action for damages,” notwithstanding its governing body “directly commanded the performance of the act.” 2 Dill. Mun. Corp. (4th ed.) § 968. And, of course, an act which is ultra vires in the sense-that it is beyond the corporate powers of a municipality can not-' become the legitimate subject-matter of ratification, since its officials are without authority to ratify an act which they could not-in the first instance have legally authorized. As a city has no right-to commit a trespass, it can not be held liable for the tortious acts' of its servants, in no way connected with the prosecution of public improvements which it has power to make, whereby private property is either damaged or destroyed. Hedeman, Mun. Corp. § 338,. p. 677. The trespass complained of in the present case was not-committed during the progress of the work done in effecting a change in the grade of the street, but was wholly disconnected therewith. It may safely be assumed, as a general proposition, thattortiously entering upon private grounds and “ jacking up ” the dwelling of the owner is neither a necessary nor usual incident to the grading of a street in front of the premises. Certain it is that-the plaintiff does not undertake to charge that, as a result of the unskillful or negligent manner in which the work of making the fill referred to was conducted, his house acquired its unwonted and unwanted elevation. Nor is there in his petition so much as a hint-that this particular municipality had corporate authority to effect any such perpendicular change with respect to his habitation. That-this could possibly be true passes understanding and belief. Judgment reversed. All the Justices concurring.