Darnall v. Georgia Railway & Electric Co.

Beck, J. (After stating the facts.) Under the conveyance from the Germania Loan & Banking Company to the Atlanta Bapid Transit Company, the predecessor in title of the defendant company, the latter acquired the right of way over the strip of land described in that deed, and had a right to construct and operate a line of railway with single or double tracks over the same; and in order to do this, the railway company had the right to make such excavations opposite the southern boundary of the plaintiff’s lot, for the adaptation of the grade of its line of railway at that place to the grade of other portions of its tracks, as might be dictated by reasons of economy, convenience, and safetjr; and if in doing this they did not invade the property rights of the -plaintiff, she would have no ground o£ complaint. Under-the [659] undisputed testimony, alter the excavation had been made in the cut south of the premises of the plaintiff, there was an intervening space of five feet or more between the top of the cut and her land. There was no evidence whatever that the lateral support to her land had in any way been interfered with, or that a retaining wall was necessary to support her land after tire cut made by the railway company had been completed. Her deed was executed subsequently to the deed conveying the strip of land to the predecessor in title of the defendant. There is no reference in her deed to a street as the southern boundary of the plaintiff’s lot, but in the deed itself the call is for the right of way of the Georgia Railway & Electric Company as the southern boundary of said lot. What may have been the nature of the estate of the railway company in the strip of land it is unnecessary for us to discuss, further than to hold that the railway company had the right to construct a line of railway over this strip of land, and to make' such excavations on that strip as were necessary in properly grading the same, and to use all or any part of the right of way as described in its deed for that purpose, so long as there was no physical invasion or injury to the plaintiff’s property. And if by the proper construction of its tracks and road-bed there was a consequent damage to defendant’s property, by causing a decrease in its market value, it was damnum absque injuria. 2. The plaintiff also contended that she was entitled to damages on account of lowering the grade of the road upon the east side of her premises, which was necessary in consequence of lowering the road-bed of the railway company in order to adapt the grade of the dirt road to the railroad. The question of the amount of damages which the plaintiff had sustained in consequence of the lowering of the grade of the Wagon road- on the east side of her lot was submitted by the court to the jury under instructions as favorable to the plaintiff as she was entitled to. The jury found against her : and rightly so, as appears from the evidence, raider proper instructions from the court, informing them that they could not find for the plaintiff on account of the injury to her premises in consequence of lowering the grade of the road on the cast side of her lot of laud, unless there was evidence from which they could determine the damages flowing from the alleged wrong in deepening the cut on the east side. And inasmuch as there [660] was no evidenc-e as to the damages to plaintiffs property, save that, which included the damages resulting from the excavation on the south as well as from the excavation on the east, and nothing, to show or indicate the-proportionate part of the damages flowing from the excavation on the south or on the oast, the jury had before them no evidence from which they could determine the amount of the damages to the premises inflicted as a consequence of the excavations on the east side of plaintiffs lot. Brooks v. Camak, 130 Ga. 213 (60 S. E. 456). 3. The rulings of the court in excluding certain testimony offered in evidence were not erroneous, it appearing that the testimony thus repelled was irrelevant to the issues involved. Judgment affirmed. All the Justices concur.