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a sufficient threat to constitute duress is, later, when they brought the suit or made questionable. But, waiving that, and treat- the allegation, is not clear; but, if it referred ing it as sufficient for the purpose of this to the former time, the mere fact of selling argument, there is no duress on these plain- property of the value of $3,000 for $1,150 is tiffs. not alone sufficient to authorize a decree that the deed be canceled. Civil Code, § 4244.

[4] Another allegation is one of fraud, in that Doyle Campbell wrote a letter to the [6] Upon the whole, no case is made out daughter, representing himself to be the at- by the petition, except to the extent that torney of her father, and asking that she the wife alleges that she sold and conveyed sign the deed with her mother, when in fact her interest in the property to Cornwell he was not her father's attorney, but was for the purpose of paying a debt due by her the attorney of Cornwell, Benton, and the husband to the bank, that Cornwell was the Jasper County Bank. There is no allegation assistant cashier of the bank, and that he that the father did not in fact desire her and the cashier of the bank colluded to obto sign the paper, or did not request her to tain the conveyance from her, so that in efdo so. Nor is there any allegation that he fect he participated in collecting for the bank did not authorize Campbell to make the re- its indebtedness by obtaining a conveyance quest. If he had requested it, or authorized from her and paying the debt to the bank, Campbell to request it, the mere statement which was less than the value of the propthat Campbell was his attorney would not erty. Accordingly the judgment of the court alone suffice to set aside the transaction, if below is reversed, with direction that, to it would be a sufficient fraud to accomplish the extent of the allegations with respect that result, even if the father did not re- to the last-mentioned matter, the case be request it. instated as to the wife; but in other respects the judgment is affirmed.

There were allegations that "by reason of the frauds, threats, and duress practiced upon H. W. Hickman and themselves, they executed and delivered to G. W. Cornwell, the defendant herein named," the deed sought to be canceled. In another place it is alleged that Cornwell employed another attorney, A. Y. Clement, who threatened the husband and father with criminal prosecution unless the deed should be signed by his wife and daughter. It was then alleged generally that "defendant, knowing of the threats, fraud, and duress, fraudulently schemed and connived by subtle arguments and acts in consonance with other people, and by other fraudulent means caused petitioners to make and deliver said deed described in paragraph 9 of this petition." This general allegation that defendant "connived by subtle arguments and acts in consonance with other people," and that "by other fraudulent means" he caused the petitioners to make the deed, is entirely too general to amount to an allegation either of duress or fraud upon the petitioners. Allegations of "subtle arguments" and of "acts in consonance with other people" do not indicate specific acts of fraud, and the allegation that the plaintiffs were induced to make the deed "by other fraudulent means" is entirely too general to withstand a demurrer. Fraud must be alleged in something more than adjectives. Anderson v. Goodwin, 125 Ga. 663, 54 S. E. 679.

[5] The next ground asserted for setting aside the deed is that the plaintiffs sold the property at a price below its value. The price at which the defendant bought it was $1,150. The allegation in regard to its value is:

"Petitioners show that the actual market value of said property described in paragraph 9 of this petition to be $3,000."

Whether they showed it to be $3,000 at the time when it was sold, or about six years

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BRINDLE v. COPELAND, (No. 496.) (Supreme Court of Georgia. June 20, 1916.)

(Syllabus by the Court.)

1. NUISANCE 61, 82-DISORDERLY HOUSE

INJUNCTION-"PUBLIC NUISANCE."

A lewd house is per se a "public_nuisance" (4 Bl. Com. 168; Joyce on Law of Nuisances, § 12), and its maintenance may be abated by injunction on petition brought by a solicitor general in the name of the state, on the information of one of its citizens as relator. Walker v. McNelly, 121 Ga. 114, 48 S. E. 718; City Council of Augusta v. Reynolds, 122 Ga. 754(3), 760, 50 S. E. 998, 69 L. R. A. 564, 106 Am. St. Rep. 147, and citations.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 142-151, 195; Dec. Dig. 61, 82.]

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HOUSE. On the trial in such proceeding, the general reputation for lewdness of the woman charged with maintaining the lewd house (in which she resides), as well as the general reputation of the house as a place of lewdness or prostitution, is competent evidence. McCain v. State, 57 Ga. 390; Braddy v. Milledgeville, 74 Ga. 516, 58 Am. Rep. 443; Hogan v. State, 76 Ga. 82; Gossett v. State, 123 Ga. 431, 437, 51 S. E. 394; Moore v. Dozier, 128 Ga. 90, 95, 57 S. E. 110.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 196-199; Dec. Dig. 84.] 3. NUISANCE 84-PROCEEDINGS TO ABATE -EVIDENCE.

ceeding it was error to permit a witness to tesOn an interlocutory hearing in such a protify as follows: "I own a piece of land across the street from where defendant lives, and could only get $100 a year rent for it, when it was worth the sum of $125 a year. I could not get the worth of it because the defendant living so near it." The process was instituted in the name of the state to abate a public nuisance, while this testimony tended to show the

injurious effect of the alleged public nuisance to one individual; therefore the objection to the testimony on the ground of its irrelevancy should have been sustained. In view however, of the other evidence submitted, this error does not require a reversal.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 196-199; Dec. Dig. 84.] 4. NUISANCE -Order.

85-PROCEEDINGS TO ABATE order: "It appearing to the court that the Upon such hearing the court granted this house is run solely as a lewd house, and not as a bona fide home, and that same is a disorderly house, the defendant is restrained and enjoined from operating a lewd house or disorderly house, and the house is ordered closed until the further order of this court." The judge had no authority under the law to order the

house closed.

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The evidence authorized the granting of the order passed by the court, with the exception noted in the next preceding headnote. Direction is given that the order be modified to the extent of eliminating therefrom so much of it as ordered the closing of the house.

Error from Superior Court, Floyd County; Moses Wright, Judge.

Petition by the State, on the relation of J. W. Copeland, to abate a public nuisance. Judgment for relator, and defendant brings error. Affirmed, with direction.

John W. Bale and Eubanks & Mebane, all of Rome, for plaintiff in error. Barry Wright, of Rome, for defendant in error.

FISH, C. J. Judgment affirmed, with direction.

(145 Ga. 399)

MARTIN v. COPELAND.
REEVES v. SAME.
(No. 497.)

(Supreme Court of Georgia. June 20, 1916.)
(Syllabus by the Court.)
NUISANCE 85-PROCEEDINGS TO ABATE-
ORDER.

These cases on their facts are controlled by the rulings made in the case of Brindle v. Copeland, 89 S. E. 332, and the same direction is given as to the modification of the orders in these cases as was given in that case, viz., that the orders be modified to the extent of eliminating therefrom so much of them as ordered the closing of the houses of the defendants. [Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 200; Dec. Dig. 85.]

Error from Superior Court, Floyd County; Moses Wright, Judge.

Proceedings by the State, on relation of J. W. Copeland, against Rosa Martin and Kittie Reeves, to abate the maintenance of a public nuisance. Judgment for relator, and defendants bring error. Affirmed, with direc

tion.

John W. Bale and Eubanks & Mebane, all of Rome, for plaintiffs in error. Barry Wright, of Rome, for defendant in error. FISH, C. J. Judgments affirmed, with direction.

(145 Ga. 356) (No. 476.)

WHITE v. STRICKLAND. (Supreme Court of Georgia. June 14, 1916.) (Syllabus by the Court.)

EXCEPTIONS, BILL OF 56(2)-CERTIFICATE. A bill of exceptions must be positively certified as true. Where the certificate is that "the foregoing bill of exceptions is approximately Bill of, Cent. Dig. § 94; Dec. Dig. 56(2).] true," it will be dismissed. [Ed. Note.-For other cases, see Exceptions,

Error from Superior Court, Bulloch County; J. I. Summerall, Judge.

Action between H. L. White and J. D. Strickland. From the judgment, H. L. White brings error. Dismissed.

Anderson & Jones, of Statesboro, for plaintiff in error. Hunter & Jones, of Statesboro, for defendant in error.

EVANS, P. J. Writ of error dismissed.

(145 Ga. 356) (No. 475.) June 14, 1916.)

BANK OF EMANUEL v. LAMB. (Supreme Court of Georgia.

(Syllabus by the Court.) INSTRUCTIONS-DENIAL OF NEW TRIAL.

The evidence authorized the verdict, the charge was sufficiently comprehensive of the issues, and there was no error in overruling the motion for new trial.

Error from Superior Court, Emanuel County; B. T. Rawlings, Judge.

Action between Bank of Emanuel and J. B. Lamb and others. From a judgment, the Bank brings error. Affirmed.

Saffold & Jordan, of Swainsboro, for plaintiff in error.

EVANS, P. J. Judgment affirmed.

(145 Ga. 375) SHORT & CO. v. LYNCHBURG SHOE CO. (Supreme Court of Georgia. June 16, 1916.) (Syllabus by the Court.)

APPEAL AND ERROR 1140(2)-DIRECTION OF VERDICT-EXCESSIVE AMOUNT-DECISION ON APPEAL.

an account.

The Lynchburg Shoe Company brought suit against Short & Co. for $525.40, besides interest and 10 per cent. attorney's fees, on three prommissory notes, and for the further sum of $8.25, and interest thereon from January 29, 1913, on court for the amount sued for. A verdict was directed by the The evidence demanded the verdict for the plaintiff for the amount of the notes. As to the account the evidence was in conflict. In exercise of the power conferred on the Supreme Court in Civil Code 1910, § 6205, the judgment is affirmed on condition that the plaintiff shall within 30 days from the return of the remittitur to the trial court write off from the verdict and judgment the amount of the account. If it should fail to do so, the judgment refusing a new trial

shall stand reversed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4463; Dec. Dig. 1140(2).] Error from Superior Court, Colquitt County; W. E. Thomas, Judge.

Action by the Lynchburg Shoe Company | Judgment for defendant, and plaintiff brings against Short & Co. Judgment for plaintiff, error. Affirmed. and defendants bring error. Affirmed on condition.

W. O. Wilson, of Atlanta, for plaintiff in error. Green, Tilson & McKinney, of Atlan

W. A. Covington, of Moultrie, for plain- ta, for defendant in error. tiffs in error. T. H. Parker, of Moultrie, R. L. J. Smith, of Commerce, and Little, Powell, Smith & Goldstein, of Atlanta, for defendant in error.

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(145 Ga. 402)

BLACK v. BUSH. (No. 501.) (Supreme Court of Georgia.

June 20, 1916.)

(Syllabus by the Court.)

1. DEMURRER TO PETITION.

This was an action for specific performance of a contract for the sale of land. When the case was before the Supreme Court on a former occasion, a judgment of the trial court, sustaining a demurrer to the petition, was reversed. Bush v. Black, 142 Ga. 157, 82 S. E. 530. 2. TRIAL 260(9) INSTRUCTION

SITES.

REQUI

On a subsequent trial of the case on its merits, there was an issue as to whether the parties had made a contract, the plaintiff contending that they had entered into a complete written contract, which was produced, and the defendant contending that, while the signature was hers, when it was made there was no contract expressed on the paper above it, and that she was induced to make her signature by fraudulent representations of the other party and his agent, and that after procuring her signature the description of the property and other provisions of the alleged writing were inserted, which made it appear that she had entered into a contract to which she had not assented. This phase of the case was covered in the charge to the jury, and the ground of the motion for new trial, which complains that the judge "failed to charge the law as to the alteration of a written instrument, that a material alteration of a written instrument in a material part by a person claiming a benefit thereunder would render such instrument void"-was without merit.

ATKINSON, J. Judgment affirmed.

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(Syllabus by the Court.)

ADVERSE POSSESSION 45, 72, 76-HOSTILE
CHARACTER OF POSSESSION-COLOR OF TITLE
-NOTICE OF ADVERSE CLAIM.

Under the previous decision in this case (Coates v. Jones, 142 Ga. 237, 82 S. E. 649), the loan company, by taking possession under the void sheriff's deed, was in no better position than if it had taken possession under its security deed and held subject to the terms of its bond for title, giving a right of redemption to the debtor, and payment could be made either in money or by an accounting for rents, issues, and profits. It was further held that as to the loan company no prescription ran. It was still further held that Jones, if he took with notice, occupied no better position with respect to the equity of Mrs. Coates than did the loan company. It was further intimated, if not held, that a prescription might run in favor of Jones under his bond for title, if he took without notice, but that the prescriptive time might be tolled if he misled Mrs. Coates, so as to prevent her suing during a certain period, and that such period would not be accounted in his favor, if prescription would otherwise have ripened. We are not now dealing with the question of one who buys and pays in full without notice of an equity, and whether he takes entirely free from the equity, but with the question of the prescription of Jones. Following the line of the above decision, and others on which it was predicated, we now hold that if Jones, at the time he bought and took his bond for title, had notice, he took subject to Mrs. Coates' equity, and a prescription would not run in his favor, as it would not have run in favor of the loan company. But if, at the time he bought and took his bond for title and possession thereunder, he did not have notice, this would furnish such color of title and possession as would afford a basis for prescription. One can prescribe under a bond for title as well as a deed, except as against the obligee of the bond and his representatives. Garrett v. Adrain, 44 Ga. 274; Burdell v. Blain, 66 Ga. 169. Therefore, if without notice he bought the land, took a bond for title, and went into possession, and remained in possession for seven years, with the requisite quality of possession for prescriptive purposes, he would acquire a prescriptive title: and this prescriptive title could be set up in opposition to the claim of Mrs. Coates to have an accounting (which she contended would pay off the indebtedness), and to have the title declared to be in her. But if he deceived or misled her, and for a time prevented her bringing suit, the time during which she was thus delayed would not be accounted in his favor, under the former discusion of each of the grounds set out in the Without entering into motion for a new trial, it is sufficient to say that the instructions given by the presiding judge to the jury did not, in material respects, conform to the rulings herein made, and that a new trial Action by L. R. Black against G. L. Bush. should result, so that on another hearing the

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[Ed. Note.-For other cases, see Trial, Cent. Dig. 8 658; Dec. Dig. 260(9).]

3. APPEAL AND ERROR 1078(4)-REVIEWABANDONMENT OF ERROR.

The assignment of error, based on the ground of the motion for new trial which complains of an excerpt from the charge of the court, is not referred to in the brief of counsel for plaintiff in error, and will be regarded as abandoned.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4259; Dec. Dig. 1078(4).] 4. SUFFICIENCY OF EVIDENCE-NEW TRIAL RE

FUSED.

The evidence was sufficient to support the verdict for the plaintiff, and the discretion of the trial judge in refusing to grant a new trial I will not be disturbed.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

decision in this case.

case may be tried in accordance with the deci-, the girl alleged to have been assaulted, who sions of this court.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 232-254, 430-434, 448450; Dec. Dig. 45, 72, 76.]

Error from Superior Court, Hancock County; J. B. Park, Judge.

Action by M. N. Coates against J. A. Jones. Judgment for plaintiff, and defendant brings error. Reversed.

Allen & Pottle, of Milledgeville, and R. L. Merritt, of Sparta, for plaintiff in error. S. H. Sibley, of Union Point, and Sibley & Sibley, of Milledgeville, for defendant in error. HILL, J. Judgment reversed.

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1. INSTRUCTIONS.

There is no merit in the grounds of the motion for a new trial complaining of certain portions of the charge of the court. 2. CRIMINAL LAW 369(8) EVIDENCE OF OTHER TRANSACTIONS-ADMISSIBILITY. The defendant being on trial for a criminal assault upon his daughter, a child of tender years, the testimony of a witness for the state, an elder sister of the girl upon whom the alleged assault was made, to the effect that the defendant had threatened the life of the witness during the preceding year, was irrelevant and inadmissible; the threat thus referred to having been made apparently in connection with an assault upon the witness, and relating to the conduct of the defendant in another transaction, and therefore falling within the inhibition contained in the general rule that the conduct of parties in other transactions is irrelevant and inadmissible.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 822, 823; Dec. Dig. 369(8).]

Evans, P. J., and Lumpkin J., dissenting. Error from Superior Court, Decatur County; E. E. Cox, Judge.

J. F. Moose was convicted of rape, and brings error. Reversed.

R. L. Cox, of Monroe, and W. H. Krause, A. E. Thornton, and Hartsfield & Conger, all of Bainbridge, for plaintiff in error. R. C. Bell, Sol. Gen., of Cairo, J. R. Wilson and W. M. Harrell, both of Bainbridge, F. A. Hooper, of Atlanta, Clifford Walker, Atty. Gen., and Mark Bolding, of Atlanta, for the

State.

BECK, J. J. F. Moose was indicted for the offense of rape, and upon the trial the jury returned a verdict of guilty. The defendant made a motion for a new trial, which was overruled.

[1] 1. There is no merit in the grounds of the motion complaining of certain portions of the court's charge.

[2] 2. In another ground of the motion for a new trial the defendant excepts to a ruling of the court which permitted a sister of

was a witness for the state, to testify that the defendant had "threatened to take her [the witness'] life," over the objection that this testimony was irrelevant and prejudicial. The accused was on trial for committing the offense of rape upon. his own daughter, a child 14 years of age. She had testified that the crime was committed at night, after she had retired to bed with her sister, Ethel Moose, in a room different from that in which her father and mother slept. She further testified that her father came to the bed in which she was sleeping and waked her up. At first she pretended to be still asleep. Her younger sister, Ruth, was on the back side of the bed, and her elder sister, Ethel, on the front side. After waking the witness, the accused went out for a short while, and came back, and told her that she "might as well come on in there," but an infant child in another room awoke and began to cry, and the witness arose and went behind the bed; but the accused again returned, and, finding her out of the bed, searched for her, and found her in a place of concealment, and told her that she had to come with him.

This witness testified to further protest and When the elder a resistance made by her. sister, Ethel, was on the stand, she testified that she was awake and heard the colloquy between the father and the younger sister; she heard the protests of the latter and her pleadings with the father, but she herself made no outcry.

If the witness last mentioned had made the statement objected to in connection with her narration of the happenings at the time when the accused forced the younger daughter, Minnie, to go with him, it would have been relevant and admissible, as tending to explain why she made no outcry and did not come to the assistance of her younger sister in resisting the efforts of the father to force the young girl out of the room; but the testimony objected to was not thus made in that immediate connection, for, after having testified as set forth above, and narrated certain other occurrences immediately succeeding, she stated:

"I sent my sister to Mr. Cox's office for a law book about three months ago, as I wanted to find out what to do in a matter just the same as this rape, not upon my sister, but upon myself. My father threatened my life last year, and told me that he would kill me if I told it."

Apparently the threat contained in the quotation, "My father threatened my life last year, and told me that he would kill me if I told it," was made the year previously, and seemingly in connection with an attempt which had been made upon the witness. Therefore this testimony was inadmissible, falling within the general rule that the conduct of the parties in other transactions is irrelevant matter, unless the nature of the action involves such character, and renders

necessary or proper the investigation of such conduct. Pen. Code, § 1019.

Inasmuch as the judgment of the court below refusing a new trial is reversed upon another ground, it is unnecessary to consider and pass upon the ground of the motion predicated upon newly discovered evidence, as this question cannot arise at the next trial.

Judgment reversed. All the Justices concur, except

EVANS, P. J., and LUMPKIN, J. (dissenting). We are constrained to dissent from the ruling made in this case. The reversal is based upon a ground of the motion for a new trial which complains that the court admitted evidence of a daughter of the accused other than the girl with whose rape he is charged, to the effect that he had threatened her life. There was no exception to admitting evidence in regard to any effort to commit rape upon the witness, but solely to admitting evidence in regard to his having threatened her life. An examination of the record shows that she explained her conduct at the time of the alleged rape of her sister, and her own failure to make an outcry, by reason of her fear of her father, resulting from his having threatened her life. As explanatory of her conduct, we think the evidence admissible.

(145 Ga. 380)

CITY OF NEWNAN v. DAVIS et al.

(No. 486.)

Error from Superior Court, Coweta County; R. W. Freeman, Judge.

Action by T. B. Davis and others against the City of Newnan. Judgment for plaintiffs, and defendant brings error. Affirmed.

A. H. Freeman, of Newnan, for plaintiff in error. W. C. Wright and W. L. Stallings, both of Newnan, for defendants in error.

EVANS, P. J. In the city of Newnan La Grange street crosses the tracks of the Central of Georgia Railway Company. The plaintiffs own a lot of land abutting on La Grange street near the railroad crossing, and on this land are located two dwelling houses and a storehouse. These buillings are one story in height. The city of Newnan constructed along La Grange street, and over the tracks of the railroad company, a bridge or viaduct, which is approximately 40 feet high in front of the plaintiffs' property and higher than the buildings on the property. The plaintiffs sued the city for damages from alleged depreciation in the value of their property, due to the construction of the viaduct, and recovered. The court refused to set aside the verdict on motion for new trial. In his instructions the judge, after referring to the pleadings as not challenging the city's right to construct the viaduct, and after stating that the issue between the parties was whether its construction had depreciated the market value of the plaintiffs' property, charged as follows:

"So, gentlemen, you look to the evidence upon that proposition, and you determine from

(Supreme Court of Georgia. June 17, 1916.) the evidence what was the fair market value

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1. EMINENT DOMAIN 222(4) — CONSTRUCTION OF VIADUCT-ACTION FOR DAMAGES

INSTRUCTIONS-MARKET VALUE.

The definition of market value, given by the judge in his instructions to the jury, was not substantially different from that previously approved by this court.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 565; Dec. Dig. 222(4).] 193(2)-INSTRUCTION-EXPRES

2. TRIAL

SION OF OPINION. In connection with its context, the charge complained of as expressing an opinion on the facts is not open to that criticism.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 437; Dec. Dig. 193(2).] 3. EMINENT DOMAIN 141(1)-MEASURE OF DAMAGES-CONSTRUCTION OF VIADUCT. The court's instruction that the jury should consider the property as a whole, and determine from the evidence what was its fair market value at the time and just prior to the erection of the viaduct, and determine how much, if any, the construction and maintenance of the viaduct had depreciated that market value, fairly stated the rule as to the measure of damages.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 372, 375, 376; Dec. Dig. 141(1).]

4. ASSIGNMENT OF ERROR-VERDICT.

Other assignments of error are without merit. The verdict is supported by the evidence.

of this property before the erection and construction of the viaduct, and without reference to its construction or erection. And market

value, gentlemen, is the price that property will bring when it is offered for sale by one who desires but is not obliged to sell, and is bought by one who is under no necessity of having it. So, under this rule, gentlemen, you look to the evidence and determine what was

the fair market value of this property at the fair market value without reference to the contime the viaduct was erected, and what was its struction or erection of the viaduct. It is your duty to look to the evidence and consider, if the evidence shows, what the capabilities of the property were-its capabilities and all the uses to which it may be applied, or to which it is adapted, both before and after the construction and erection of the viaduct. Determine it erty as a whole, land and buildings; take it as in the light of the evidence. Look at this propa unit, as one piece of property; and you determine from the evidence what was its fair market value at the time and just prior to the in front of it. Consider all the evidence that enerection of the viaduct along La Grange street ters into this question of its value, and determine what its fair market value was then; and then look to the evidence and determine how much, if any, the construction and maintenance of the viaduct in the front of this property has depreciated that market value. The jury may consider the adaptability to business or other advantageous uses of that portion of the street made possible by the erection of the viaduct. Consider all the elements, gentlemen, that would be advantageous to the property by the construction of the viaduct, if the evidence

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