dissenting. I do not view the case presented by the present bill of exceptions in the light to which it presents itself to the majority of the court. The case as presented in the opinion of the majority does not appear to me as the case really presented by the record. It is altogether probable that I may be wrong in my concept of the law, since I differ from my learned and distinguished colleagues. However, even though the latter be true by reason that their views are supported by the greater weight of authority, I shall not falter in announcing from the bench my protest against any construction of the laws of Georgia which place it within the power of either private or municipal corporations to damage or destroy the property of even the humblest citizen for the benefit of public improvements, without affording him a remedy, either legal or equitable, adequate to give him justice. I am not unaware of the strong trend of modern decisions towards the sacrifice of puny personal rights to appease an overwhelming public cry for what is called the public good, and yielding to this cry has brought the highest rate of taxation and the largest municipal bonded indebtedness ever known in the history of our State. However, in my opinion, the law of this State and our very constitution of 1877 protect in some degree the private property of a citizen from seizure or damage, by the provision that no man’s private property shall be taken or damaged for public purposes without just and adequate compensation being first paid. The *431principle embodied in this provision of the constitution' is so essentially just that it was applied several times by this court to the taking of private property for public uses, long before the adoption of the constitution of 1877. Hall v. Boyd, 14 Ga. 1; Powers v. Armstrong, 19 Ga. 427. Until the adoption of the constitution of 1877 provision had not been made in the organic law of the State to secure to one whose property was damaged for public purposes the same right which had always been conceded in case one’s property was itself ialcen for public use. In the opinion of the majority there is a very exhaustive discussion of the qualifications upon the right of one whose property is taken for public purposes and of the conditions under which it may be taken. I shall not concern myself in any way with that phase of the question, because, as I see the record in this case, there is no contention on the part of the plaintiff that any of the lot on which his building is located at the corner of Hunter and Pryor Streets is sought to be taken or has been taken by the City of Atlanta for street purposes. Therefore it seems to me that authorities dealing with the power conferred by the General Assembly upon the City of Atlanta in its charter in regard to condemning property for the purpose of making a street are foreign to the question presented to the court in this case.
Upon the hearing of the application for an interlocutory injunction the testimony was undisputed that the plaintiff had a lease upon which he was receiving a rental of $750 per month for his building, and that the change of conditions and destruction of his former means of ingress and egress by reason of the proposed improvement had caused and would continue to cause him to be deprived of this income, as well as constitute a continuing trespass. It also appeared without contradiction that the city had not paid or tendered to pay any compensation to the plaintiff for this or any other damage. It is uncontradicted that the grade of the street-under the proposed plan leaves the Hunter street entrance of the plaintiff’s building from five to six feet below the grade of the street and above the floor of the store; and that four or five small stores on Pryor Street, as well as the stairway to the second story of the building, are subjected in a lesser degree to similar damage by the change in the grade of the street. It would serve no good purpose to recapitulate the different items of damage appearing in *432the testimony, because upon principle the plaintiff is entitled to be compensated for the damages that are inevitably and essentially consequent to the improvement sought to be accomplished by the municipality, and to have this damage paid before the injury be inflicted, or, to say the least, that such damage as the city itself could not fail to see would ensue to the landlord whose tenants have been forced to leave the building should be paid or tendered before it attempted to destroy his income. The subject-matter is covered by the provision of the constitution to which we have referred, which as much demands that private property shall not be damaged for public purposes without just and adequate compensation being first paid as it makes provision for compensation in case the property itself is taken for public use. It can not be denied that a landlord's rents are property. If he is deprived of them, whether temporarily, or permanently, he is entitled to compensation according to the circumstances. As said by Mr. Justice Atkinson in Pause v. Atlanta, 98 Ga. 92, 100 (26 S. E. 489, 58 Am. St. R. 290), “The word ‘ damage' embraces more than the mere physical taking of property, and is not restricted to cases where the owner is entitled to recover as for a tort at common law. 66 Cal. 492. It sepms that this language is intended to cover all cases in which, even in the proper prosecution of a public work or purpose, the right of a person in property or the property itself is in a pecuniary way injuriously affected. 63 Texas, 467; 14 Neb. 550; 45 Ark. 429; 67 Ga. 386; 7 Col. 113; 10 Col. 403; 17 West Va. 396. The damages, therefore, that an individual may recover for injuries to his property need not necessarily be caused by acts amounting to a trespass, or by an actual physical invasion of his real estate; but if his property be depreciated in value by his being deprived of some right of user or enjoyment growing out of and appurtenant to his estate as the direct consequence of the construction and use of any public improvement, his right of action is complete, and he may recover to the extent of the injury sustained. C. & W. I. R. R. v. Ayers, 106 Ills. 511; East St. Louis v. O'Flynn, 19 App. Ct. Rep. (Ills.) 66. Accordingly it has been held that interfering with access to premises, by impeding or rendering difficult ingress or egress is such a taking and damaging as entitles the party injured to compensation under a provision for compensation where property is damaged. 22 Am. & Eng. Cor. Cases, 393; Cooley on *433Const. Limit, p. 690, note 3 on same page, and cases there cited.” The case from which the above quotation is taken was one in which there was no taking of physical property. The facts were practically identical with that portion of the complaint of the plaintiff in this case which relates to the loss of his rentals as long as the obstructions caused by the street improvement remain, either while being constructed or after their completion, except that in the Pcmse case the plaintiff was the tenant, whereas in the present case the plaintiff is the landlord. The City of Atlanta began the construction of a bridge by which, under the plan adopted, the entrance to Mrs. Pause’s place of business would be and was in fact so far obstructed as practically to cut her off from'the ordinary means of access to her business. Before the day upon which the door of her place of business was actually obstructed by the contemplated work, her business, in consequence of the obstruction to the entrance of her restaurant, became so unprofitable that she was compelled to abandon it and surrender her premises, by which she sustained damages. She was nonsuited upon the ground that she had shown no right of action against the city. In reversing that judgment the first question which arose was whether a leasehold interest in the premises was such property as comes within the provisions of art. 1, sec. 3, par. 1, of the constitution; and that question is important in this case, because the evidence is that the landlord’s interest in this valuable lease, if not taken, has been absolutely destroyed, because it is uncontradicted that the tenant who paid him $750 per month was forced out of business and ipso facto became no longer liable for his rentals. Speaking for the court upon this point Mr. Justice Atkinson said: “A leasehold interest in premises for a definite term is property within the meaning of that word as it is employed in paragraph 1, section 3, article 1 of the constitution of this State, in which provision is made against the taking or damaging of private property for public purposes without just and adequate compensation being first paid. If a tenant be deprived of his leasehold interest in consequence of the appropriation by the public to public uses of the property 'upon which his leasehold estate rests, it can not be doubted that he is deprived of his property; and hence we conclude, that the holder of a lease has such an interest in premises as will enable him to maintain an action for damages resulting to his leasehold estate, *434sustained in consequence of the construction of a duly authorized public improvement, whether such damage results from the negligence of the municipal authorities or otherwise.” I am of the opinion that the evidence without any question shows that the private property, at least the leasehold interest, of the plaintiff has been not only damaged but actually destroyed and obliterated by the public improvement, which, however necessary and beneficial it may be to the City of Atlanta as a whole, ought not, under the constitution, to be permitted to impose injury upon any private citizen unless and until just and adequate compensation has been paid, as provided in our bill of rights.
The word “damage” in paragraph 1 of section 3 of article 1 of the constitution was construed for the first time in City of Atlanta v. Green, 67 Ga. 386. Mr. Justice Speer, delivering the opinion of the court, said: “In previous constitutions the words varied from the present: ‘ Private property shall not be taken for public use without just compensation’ were the words ordinarily employed. But under the constitution of 1877 further protection is sought to be given to the property of the citizen, and now ‘ it shall not be taken or damaged for public use without just compensation. ’ The article does not define whether the damage shall be immediate and direct or consequential. Any damage to property for public use must receive its compensation. It may be, and will no doubt often occur, that the consequential damage may impose a more serious loss upon the owner than a temporary spoliation or invasion of the property. We must presume the convention intended that any damage, whether direct or consequential, done to property for public use, must be compensated for. Now this was private property, and the improvement of the street was being made for public use; and if the property was damaged thereby, why would not this plaintiff below be entitled to just compensation for such damages? We think, therefore, the court did not err in instructing the jury that the former rule of law which once obtained was altered and changed by the clause in the bill of rights, heretofore cited, in the constitution of 1877. In the constitution of Illinois the words were very similar to those contained in our own. That provision was: ‘ Private property shall not be taken or damaged for public use without just compensation. ’ In construing the meaning of these words the Supreme Court of that *435State held: ‘That if injury to private property is sustained by changing the grade of a street, the municipal corporation causing the same to be made will be liable to the owner in damages.’ 83 Ill. 535; 67 Ib. 477; 82 Ib. 337. We think a reasonable construction of our constitution, aided as we are by the interpretation of like words in the constitution of Illinois by the Supreme Court of that State, fully establishes the rule, that if a person is damaged in making such improvements, he may recover.”
I am at this time passing by any damages which may accrue in depreciation of the lot and building, because in the Green case, supra, the court laid down the now well-settled rule that any increase in the market value of the property itself caused by the improvement may be set off against any damages which may have resulted to the physical lot and buildings. I am concerning myself in considering whether the court erred in refusing altogether an interlocutory injunction of any nature, in view of the fact that the evidence clearly disclosed an immediate and direct damage to the use of the property by the destruction of the valuable rents accruing from his relation as a landlord. Such damage resulting from or consequent upon a public improvement, no matter how necessary or judiciously effected, as arise from invasion of an owner’s right to enjoy the free access or egress or the former use or income of his property, are not affected by the fact that the market value of the realty itself may have been enhanced. In Campbell v. Metropolitan Street Railroad Co., 82 Ga. 320 (1a) (supra), this court again held: “Under the present constitution, whether the property is taken or not, if it is damaged by the construction or operation of improvements made for the use of the public, its owner can recover whatever damage it has actually sustained.” In that case, as was shown by the evidence in the case at bar, the plaintiff by reason of the construction of a public improvement was virtually deprived of ingress and egress to and from his property, alleging that thereby'he was damaged $2000; and this court held that if these allegations were true, “we do not see why the plaintiff would not be entitled to recover.” The court then quoted approvingly the following from Street Railway v. Cumminsville, 14 Ohio St. 523; “ ‘There exists in the owners of adjoining lots a private right to have free access to their lands and buildings from the street, as the same was and would have continued to be *436according to the mode of its original use and appropriation by the public; and there can be no change of such mode and adaptation of the streets to new vehicles and methods of transportation which shall materially impair or destroy such right, unless by the consent of the owners, or upon the payment of due compensation to them. ’ ” This court followed this ruling with the following opinion and comment: “The Supreme Court of Wisconsin, in the case of Hobart v. The Milwaukee City Railroad Co., 27 Wis. 200 [9 Am. R. 461, after copying the above extract (14 Ohio St. 523), approves it as follows: fIt is a doctrine which imposes no unreasonable restriction upon the rights of 'the public in the use of its streets and highways, and which at the same time affords that protection to private or individual rights which the spirit and principles of our constitution and form of government require. It is possible, as has been suggested, that it may sometimes prove embarrassing in practice to determine when and to what extent the private rights of' adjoining owners have been infringed, but such embarrassments are inseparable from the consideration and determination of all similar questions. The difficulties in the way of ascertaining and determining them by no means disprove their existence or show that they ought not to be recognized and enforced. ’ We quote these extracts with approval, and think they are even more applicable in this State than in those States, because the new rule as to damage to private property is not expressly embraced in the constitutions of those States.”
The record in this case plainly shows that there has been no physical taking of even as much as an inch of the lot or building affected by the construction of which complaint is made; but the decision of this court in a very recent case is, in my opinion, directly opposite to the ruling of the trial court upon the same question, and contrary to the opinion of the majority as expressed in the present case. I refer to L. & N. Railroad Co. v. Merchants &c. Bank, 166 Ga. 310 (143 S. E. 506), in which this court affirmed a judgment granting an interlocutory injunction, where the sole damage to the petitioner’s property was caused by interference with its rights of ingress and egress, just as the same injury is one of the principal causes of the damages alleged in the case now before us. The railroad-track in question had previously run in front of the property for a long number of years. The *437change was not an altogether new and complete metamorphosis, as in the case at bar. The track which at times obstructed the entrance to the plaintiff’s bank was only sought to be placed five feet nearer the sidewalk than it was before. And yet this court, in a unanimous decision delivered by Mr. Justice Hill, quoting from the previous ruling of this court in Athens Terminal Co. v. Athens Foundry, 129 Ga. 393 (3, 4) (supra), held that “Although the General Assembly may empower a commercial railroad company to occupy the streets of a town or city with the consent of the municipal authorities, yet such permission is subject to the constitutional restraint that ‘private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid. ’ If the property of an abutting landowner will be damaged by the laying and use of a track in the street, the railroad company must first pay or tender to such property owner just and adequate compensation for the damages consequential upon the construction of the track and the uses to which it will be put. Upon failure to pay or tender the amount of such damages, equity will enjoin the construction of the track.” It was further held that “If the proposed change in the connection of the spur-track with the main-line track as relocated would cause the spur-track in front of plaintiff’s property to be nearer to said property than as originally located, the effect of which would be to cause consequential damage to the plaintiff, it would be the duty of the railroad company to ascertain and pay or tender all such consequential damages; and, if the railroad company proceeded to make a change in the location of the spur-track without having paid or tendered payment of the consequential damages to the plaintiff, equity will enjoin such change in the location of the spur-track.” In view of the evidence before the trial court, and it being admitted that in the ease at bar there has been no tender to pay .any damages whatsoever, although to my mind the evidence of some damage is clear, I can but-adhere to my views as announced by the court in the case just cited; from which necessarily results my opinion that the court erred in refusing altogether an interylocutory injunction, regardless of consequential damages which may or may not eventually be inflicted.
This court has many times drawn attention to a difference between injury-of the rental value as distinguished from injury to *438the market value of property. Among many cases that could be cited are Davis v. East Tenn. Ry. Co., 87 Ga. 605 (13 S. E. 567); Mayor &c. of Brunswick v. Tucker, 103 Ga. 233 (29 S. E. 701); Farkas v. Towns, 103 Ga. 150 (29 S. E. 700, 68 Am. St. R. 88); Mayor &c. of Waycross v. Houk, 113 Ga. 963 (39 S. E. 577). In Mayor &c. of Brunswick v. Tucker, Mr. Justice Cobb, quoting from Chief Justice Bleckley, said: “ The scope of the plaintiff's action embraces two classes of damage: damage to the corpus or freehold, and damage by diminishing the annual value of the premises for use. The evidence shows very conclusively that the market value of the property was increased, rather than diminished, by the location and use of the railroad in the street. The plaintiff can recover nothing on that score, for the reason, if for no other, that she proved no damage of that class. But the evidence did tend to show that she had sustained damage by the diminished annual value of the premises for use in their present condition. The court in its charge to the jury seems not to have recognized this element as a basis for recovery. We think this was error. A wrong-doer can not set off increase of market value caused by his unlawful act against loss of rents and profits occasioned thereby. . . Injury to rental value is, or may be, separate and distinct from injury to market value. The measure of damages in an action for a nuisance affecting real estate is not simply the depreciation of the property. . . The owner of the property is entitled to use it in its present condition, and one who unlawfully hinders, obstructs, or interferes with such use can not appeal to the increased market value which might be realized if the property were devoted to other purposes, and take credit for such increase by way of indirect set-off against the direct loss or injury which he has occasioned. ’ ” In the Houk case, supra, after calling attention to numerous cases where the evil did not consist in a physical invasion of the premises, Mr. Presiding Justice Lumpkin said: “Certainly, therefore, a flagrant abuse of power on the part of municipal authorities may, upon a proper petition filed by one having a peculiar interest in the matter, be enjoined before irreparable injury ensues. The evidence relied on by the plaintiff in the present case was such as to authorize the granting of the injunction prayed for.” Other cases in which the broad assertion that a municipality has absolute control of its streets is denied are *439Butler v. Thomasville, 74 Ga. 570, City of Atlanta v. Warnock, 91 Ga. 210 (18 S. E. 135, 23 L. R. A. 301, 44 Am. St. R. 17), and Holmes v. Atlanta, 113 Ga. 761 (39 S. E. 458). It is my opinion, just as said by Justice Lumpkin in the Houk case, that the evidence for the plaintiff in the present case required the grant of an injunction as to the interference with his right of access, ingress, and egress to his property, and that under the ruling in the case of L. & N. Railroad Co. v. Merchants &c. Bank, supra, the city should not be permitted, in violation of the constitution, to endamage a citizen even in the respect referred to until just and adequate compensation has been made.