(After stating the foregoing-facts.) The right of the railway to construct and operate the road longitudinally upon the street is not questioned. That the railway is in the street lawfully is conceded. There was some evidence from which the jury might possibly find that the grading upon both the avenue and the street was done by the railway company; but it is not necessary to determine whether this evidence was sufficient to authorize such a finding, for the reason that the answer of the railway company, construed most strongly against it, in effect admits that it did the grading, and seeks to justify its act in doing the work by pleading the authority of the city to do the work. If the grading of these streets was simply a part of a general plan devised by the city authorities to grade the streets, independent of the use of the same by the railway, and the railway company was in effect the employee or contractor of the city to do this work, it may be that there would be no right of action in the plaintiff against the railway company, but he would be remitted to his action against the city. However, if the change in the grade of the streets was for the benefit and convenience of the railway company, and was clone by it under the authority of the city to facilitate the construction of its railroad, and not as a part of a general plan of street grading, the plaintiff would have his action against either the city or the railway company for any damages to his property that resulted from the grading. If a city grades its streets to make them more useful to the public, and private property is damaged as a result of this improvement, the owner is entitled to his action against the city. If a railway company find it necessary to change the grade of a street in order to facilitate the construction of its road, and the city authorities consent that the change may be made, the owner of property damaged by the act of the railway company is entitled to his action against the company. How far a recovery against a railway company would, under such circumstances, affect his right to claim compensation against the city need not be determined in the present case. When the evidence is. taken as a whole, it is sufficient to authorize a finding that the change in the grade of the street, although beneficial to the public without reference to the rights of the railway company, also inured to the benefit of the
2-4. In Steiner’s case (decided in 1871), 44 Ga. 546, it was held, while the use of a public street might be lawfully granted to a railroad company to layr its track and operate its trains thereon, that if this use of the street inflicts injury upon those who own property on the street, by throwing smoke through the buildings along the street, or by shaking or breaking the plastering of buildings, or by the noise resulting from the operation of trains, the legislative right to run over the street does not make such acts harmless, and the injury inflicted is not damnum absque injuria; but that the right of recovery is limited to actual damages, and, on a trial, any damages shown to have resulted from a depreciation in the value of the property, not only from obstruction to access, but from smoke, noise, etc., “traceable as effect from cause,” would be recoverable, buf that mere inconvenience to the occupants of the building, resulting from the lawful occupation of the street by the railroad, or damages which were of a fanciful or speculative nature, or sentimental in character, would not be the subject of recovery. In this case the railway was laid along a street in the city of ■Augusta, which was sixty-five feet wide. The track was five feet in width, located in the center of the street, on the same level as the street, and offered no obstruction to the crossing of the street, at any point, beyond a slight jolting of vehicles. The ruling was concurred in by two Judges onN, Judge McCaj' dissenting. An opinion was filed by each of the Judges. It is to be noted .that this case was decided before the constitution of 1877, at a time when .damages could not be recovered for the mere damaging of private property for public use when there had been no taking of the property. The right of the plaintiff to recover was based, by the Chief Justice and Judge Warner, upon that provision of the code now contained in section 3874, which is in the following language: “The right of enjojunent of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a cause of action.” They each seem to have concurred in the view that so far as the effect upon the property rights of abutting-land owners was concerned, it was really, so -far as the actual damage was concerned, a taking of their prop
If the construction and operation of a railroad in a street, the fee of which is not in the owners of adjacent property, which, so far as any physical effect upon the property .abutting on the street was concerned, simply interfered with the right of approach to the same, was a taking of private property for public use within the meaning of a constitution which prohibited merely the taking of private property for such public use without just compensation, certainly such a transaction would be a damaging of private property within the meaning of a constitutional provision requiring compensation to be made not only when private ¡property is taken, but when it is damaged for public use. Such was the view of this court in Campbell v. Railroad Co., 82 Ga. 320, a case originating after the adoption of the present constitution. It was there held that the construction and operation of a horse railway in the public streets of a city b}r the authority of the legislature and the consent of the city government, whether it be a new burden upon the street or not, entitled an owner of adjacent property to recover for any special damage to his property resulting from the construction and operation of the railway. It was also held that if in the operation of a railway in a street there was noise, smoke dust, cinders, or the like, which were shown by the evidence to have depreciated the market value of the property, these elements should be considered in arriving at the amount of the recovery, but if, under the evidence, they merely inconvenienced or caused discomfort to the occupants of the propertj', they are not elements of damage and should not be so considered. The plaintiff in that
5. The entire charge of the court does not appear in the record, but, from an extract as contained in the motion for a new trial, it appears that the charge distinctly instructed the jury that they were not to consider, in estimating the damages, the effect that noise, smoke, and the like might have upon the convenience of the occupants of the property, but these elements were only to be considered so far as they affected the market value of the property. The complaint is that the verdict was contrary to this charge. But there was evidence from which the jury could find that these elements affected the market value of the property, as well as the comfort and convenience of the occupants, and it is to be presumed that the jury followed the instructions of the court and considered them for that purpose for which they were authorized to consider them, and refused to consider them for any other purpose.
6. A witness was' permitted to testify that there had been a general increase in the value of property,, in Cordele in the past three years, to the extent of fifty per cent, or more. This evidence was objected to on the ground that it was irrelevant, and error is assigned, in the motion for a new trial, upon its admission. It will be noted that-the scope of the testimony embraced property in every part of Cordele. If the property in every part of this city had for some reason appreciated in value, and the property of the plaintiff had depreciated, this fact was a circumstance that the jury might properly consider in determining whether the presence of the railway in the street adjacent to the property of the plaintiff had any effect in producing the depreciation in the value of the property. It is a circumstance which would be entitled to such weight as the jury saw fit to give it. The evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.
Judgment affirmed.