A city may not take or damage private property, for public purposes, without just and adequate compensation being first paid.

Henry L. Allison filed a suit against the City of East Point for damages arising out of the construction of a sidewalk on his property.

" 'The petition alleged in part: the plaintiff alleges that the defendant had an easement over his property herein described for the purpose of constructing sidewalks, and the plaintiff consented to the construction of the sidewalks; the plaintiff alleges that sometime in April, 1957, the exact date being unknown to him but well known to the defendant, the defendant commenced grading for the purpose of putting in the sidewalks; the plaintiff shows that the grading left a sheer drop-off of approximately seven to eight feet in front of his house and running the entire length of his property; that the grading continued on in front of the plaintiff's house and from the west line of his vacant lot to the east boundary of the lot, leaving a sheer drop-off of approximately four to five feet; that the grading severed his driveway so that he had no driveway but rather a straight drop-off of approximately four feet from the remaining part of his driveway to the sidewalk below; that although he had consented to the construction, he did not anticipate that the city after completing construction of the sidewalks, would leave his property in the condition heretofore described, and he would not have consented to the project had he known; the defendant has been notified by the petitioner many times of the aforesaid conditions existing in the plaintiff's yard and vacant lot and has been asked to correct the same, but the defendant has refused and refrained from correcting the condition, and on May 31, 1957, the plaintiff, through his attorney, made a written claim for damages sustained by him addressed to the Mayor of East Point and directed to the defendant by United States mail and more than thirty days has expired since the written notice without action thereon by the defendant; copy of the notice is attached hereto and made a part hereof, and marked exhibit A; that prior to the grading and construction by the defendant the plaintiff's house and lot and vacant lot hereinbefore described had a reasonable market value of twenty thousand dollars, but, following the grading and construction and by reason thereof, the plaintiff's house and lot and vacant lot had a reasonable market value of only seventeen thousand five hundred dollars; the plaintiff shows that the damage to his property was the taking or damaging of private property for public purposes without just and adequate compensation being first paid therefor, in direct contravention of the laws and Constitution of the State of Georgia as set out in 301, Title 2, Code of Georgia.

The defendant filed a general demurrer to the petition which was overruled. To this ruling exception is taken.

1. The petition alleges: that as a result of the grading there is a drop-off of approximately seven or eight feet in front of the plaintiff's house; that as a result of the grading he no longer has the use of his driveway because there is a drop-off of approximately four feet from the remaining driveway to the sidewalk; that as a result of this grading the market value of his property has been diminished.

The defendant insists it is not liable for this damage because Sec. 172 of an act amending the charter of the City of East Point (Ga. L. 1957, p. 2429), provides: "Costs assessed against abutting or other property and the owners thereof for sewers, sidewalks, streets or street curbing shall, except as otherwise provided by this Act, include all costs of such improvement, including necessary engineering, surveying, ditching, back filling, grading, blasting, dynamiting, pipe, and all other labor and materials, and shall include tearing up and reconstruction, repaving, repairing, and replacing of sewers, streets, sidewalks and street curbing, and extending, relocating, and regrading for any of these, to the private property line of the property assessed."

While it is true the act provides that the property and its owner are responsible for the construction cost of the sidewalk and other work done which is necessary, this act does not and could not give the city authority to either take or damage private property without just and adequate compensation. Code (Ann.) 2-301.

The judge did not err in overruling the general demurrer to the petition.

Judgment affirmed. Felton, C. J., and Nichols, J., concur.