Opinion
36376, 36387.
DECIDED NOVEMBER 16, 1956. REHEARING DENIED NOVEMBER 28, 1956.
Tort; damage to realty. Before Judge Jones. Albany City Court. June 29, 1956.
Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Assistant Attorneys-General, J. W. Smith, Deputy Assistant Attorney-General, for plaintiff in error.
H. G. Rawls, R. B. Williamson, contra.
The court did not err in overruling the general and special demurrers to the petition as amended.
DECIDED NOVEMBER 16, 1956 — REHEARING DENIED NOVEMBER 28, 1956.
Ire Holland brought suit against Dougherty County for damage to the plaintiff's property without first having been paid adequate and just compensation. General and special demurrers were filed by the defendant to the plaintiff's petition. The court overruled the demurrers, and it is on this judgment that the defendant assigns error here. For the reason that the demurrers go into detail regarding the petition as a whole and various paragraphs thereof, we are quoting the petition and the demurrers thereto.
The petition as amended, omitting the formal parts, shows that the amount for which suit is brought is $17,500, which is alleged to be the difference between the market value of the defendant's property before the alleged injury and after the construction of the highway by the defendant. Other paragraphs of the petition read:
"3. Petitioner has been damaged by the defendant in the sum of five thousand ($5,000) dollars by virtue of the facts hereinafter alleged. (By amendment this paragraph was changed as follows: `By striking the words and figures five thousand ($5,000) dollars in paragraph 3 and substituting therefor the words and figures seventeen thousand five hundred ($17,500) dollars, so that said paragraph 3 when so amended, will read as follows: Petitioner has been damaged by the defendant in the sum of seventeen thousand five hundred ($17,500) dollars by virtue of the facts hereinafter alleged'). 4. Petitioner is the owner of Lots Nos. 1, 2, 3, and 4 of Mayfair Subdivision as the same appears upon a plat recorded in Book I, page 255 of the plat records of Dougherty County, Georgia, consisting of an area of approximately two (2) acres and fronting four hundred five (405') feet along the north border of United States Highway No. 82, immediately west of where the Albany-Cordele Highway intersects said United States Highway No. 82, within Dougherty County, Georgia. 5. Petitioner operates upon said premises a drive-in restaurant, and maintains a trailer court, both of which are largely dependent upon trade from the traffic upon United States Highway No. 82. 6. On or about July 15, 1955, the defendant herein had completed the installation of certain concrete curbing of the approximate height of eight (8) inches, along the side of said highway immediately in front of and adjacent to the south side of petitioner's property. 7. The highway constructed in front of petitioner's property provides for four-lane traffic, the lanes for east-bound traffic and two for west-bound traffic, the same being separated in the center by a concrete median strip which requires the east-bound traffic desiring to enter petitioner's premises, to proceed approximately 50 yards beyond his place of business, make a U-turn at the Cordele Highway intersection and come back that distance in west-bound traffic to a driveway on petitioner's property. 8. The concrete curbing along the width of petitioner's property has only three driveway entrances thereon of the approximate width of twenty (20') feet and any traffic into petitioner's premises is greatly hampered and deterred on account of the insufficient width of said driveways and the manner in which they are constructed, which creates a depression in the driveway causing the bottom of vehicles undertaking to enter thereon, to come into contact with the surface of the ground. 9. Petitioner therefore says that the construction of said highway as hereinabove alleged, including the curbing, gutter and the concrete median strip, both of which were unnecessary for the efficient use of the highway by the public, greatly impairs the ingress and egress to petitioner's property and thereby greatly depreciates its market value, all in violation of Article I, Section III, of the Constitution of the State of Georgia, as embodied in Code section (1933) 2-301, in that petitioner's property has been damaged for public purposes, without just and adequate compensation being first paid. 10. Petitioner says that immediately prior to the completion of the construction of the curb and gutter and the center line of the highway as herein described, his property had a reasonable fair market value of thirty-five thousand ($35,000) dollars, and that by virtue of the existence of said obstructions resulting in the impairment of the ingress and egress to his property, the said property does not have a market value in excess of the sum of thirty thousand ($30,000) dollars. Petitioner therefore, has been damaged in the sum of five thousand ($5,000) dollars. (By amendment this paragraph was changed as follows: `Plaintiff further amends paragraph 10 of said complaint by striking the words and figures thirty thousand ($30,000) dollars and substituting therefor the words and figures seventeen thousand five hundred ($17,500) dollars; and amends further, by striking the words and figures five thousand ($5,000) dollars and substituting therefor the words and figures seventeen thousand five hundred ($17,500) dollars, so that said paragraph 10 when so amended, will read as follows: Petitioner says that immediately prior to the completion of the construction of the curb and gutter and the center line of the highway as herein described, his property had a reasonable fair market value of thirty-five thousand ($35,000) dollars, and that by virtue of the existence of said obstructions resulting in the impairment of the ingress and egress to his property, the said property does not have a market value in excess of the sum of seventeen thousand five hundred ($17,500) dollars. Petitioner therefore has been damaged in the sum of seventeen thousand five hundred ($17,500) dollars'.)"
By amendment the following was added to the petition:
"Plaintiff further shows that the most adaptable use to which his property could have been put prior to the impediment to his ingress and egress as alleged in this complaint, was that of a drive-in establishment such as retail gasoline motor fuel service station, trailer court or restaurant, and as such had a reasonable fair market value of thirty-five thousand ($35,000) dollars for such purpose, but since the construction of the curb and gutter and the median strip as described in the petition, the ingress and egress to and from his property has been impaired to the extent that its market value has been reduced by at least fifty percent (50 percent). Therefore, petitioner says that his said property as presently encumbered by the said impediment to the ingress and egress thereto and therefrom it does not have a market value in excess of the sum of seventeen thousand five hundred ($17,500) dollars, and consequently petitioner has been damaged in that amount."
The defendant filed the following demurrers, after which the plaintiff amended the petition as shown hereinabove:
"Grounds of general demurrer: 1. Neither the said petition as a whole, nor any of its several parts or paragraphs, sets out any cause of action. 2. Defendant demurs generally to paragraph 6 of plaintiff's petition on the ground that the same sets out no cause of action, and on the further ground that, when construed in connection with any or all of the other allegations of plaintiff's petition, it sets out no cause of action. Defendant further demurs generally to this paragraph on the ground that the same shows on its face that the acts complained of were lawful and not only lawful, but done in compliance with the duties imposed upon defendant by law. 3. Defendant demurs generally to paragraph 7 of plaintiff's petition on the ground that the same sets out no cause of action, either when taken alone or when taken in connection with the other allegations of the petition. Defendant further demurs generally to said paragraph on the ground that the same shows on its face that the acts complained of were lawful and not only lawful, but done in compliance with the duties imposed upon defendant by law. The allegations of said paragraph affirmatively show that the plaintiff has lawful, reasonable access to said highway; that the travelers on said highway have lawful and reasonable access to the described property of the plaintiff, and that there is lawful and reasonable ingress and egress to and from the described property of the plaintiff. 4. Defendant demurs generally to paragraph 8 of plaintiff's petition on the ground that the same sets out no cause of action, either when taken alone or when taken in connection with the other allegations of the petition. Defendant further demurs generally to said paragraph on the ground that the same shows on its face that the acts complained of were lawful and not only lawful, but done in compliance with the duties imposed upon defendant by law. The allegations of said paragraph affirmatively show that the plaintiff has lawful, reasonable access to said highway; that the travelers on said highway have lawful and reasonable access to the described property of the plaintiff, and that there is lawful and reasonable ingress and egress to and from the described property of the plaintiff. 5. Defendant demurs generally to paragraph 9 of plaintiff's petition on the ground that the same sets out no cause of action, either when taken alone or when taken in connection with the other allegations of the petition. Defendant further demurs generally to said paragraph on the ground that the same shows on its face that the acts complained of were lawful and not only lawful, but done in compliance with the duties imposed upon defendant by law. The allegations of said paragraph affirmatively show that the plaintiff has lawful, reasonable access to said highway; that the travelers on said highway have lawful and reasonable access to the described property of the plaintiff, and that there is lawful and reasonable ingress and egress to and from the described property of the plaintiff."
"Grounds of special demurrer: 6. Defendant demurs specially to that part of paragraph 5 which alleges, `both of which are largely dependent upon trade from the traffic upon United States Highway No. 82', upon the ground that such allegation is a conclusion of the pleader and that no sufficient facts have been alleged upon which to base such a conclusion, and upon the further ground that such an allegation has no material or relevant connection with the subject matter of this law suit. Such an allegation implies an obligation upon the part of defendant to supply the plaintiff with customers, and no such obligation exists either in law, equity, or by reason of any other facts or relationship. 7. Defendant demurs specially to that part of paragraph 8 which alleges, `and any traffic into petitioner's premises is greatly hampered and deterred on account of the insufficient width of said driveways and the manner in which they are constructed, which creates a depression in the driveway causing the bottom of vehicles undertaking to enter therein, to come into contact with the surface of the ground,' on the ground that this allegation is but a conclusion of the pleader, that sufficient facts are not alleged upon which to base such a conclusion, and no facts are alleged showing how or in what manner the plaintiff has suffered damage by reason of such allegation. 8. Defendant demurs specially to paragraph 9 and to that part of said paragraph which alleges, `including the curbing, gutter, and the concrete median strip, both of which were unnecessary for the efficient use of the highway by the public,' on the ground that the same is a conclusion of the pleader and without sufficient facts having been alleged upon which to base a conclusion. Defendant further specially demurs to said paragraph and to the allegation as to the alleged construction impairing ingress and egress to and from the property of the plaintiff and on the ground that there is no allegation anywhere in said paragraph that such construction was done in violation of law or in violation of the lawful rights of the plaintiff. But on the contrary, the said petition and said paragraph affirmatively show that the defendant built this construction, and in the way and manner described, in compliance with law and in the discharge of the duties imposed upon defendant by law. 9. Defendant demurs specially to paragraph 10 and to that part of said paragraph which alleges, `and that by virtue of the existence of said obstruction resulting in the impairment of the ingress and egress to its property, the said property does not have a market value in excess of the sum of $30,000,' and to the further allegation, `petitioner therefore has been damaged in the sum of $5,000,' and on the ground that these allegations constitute nothing more than conclusions of the pleader, and that no facts are alleged in said paragraph or elsewhere in said petition upon which to base such a conclusion."
Counsel for both parties rely mainly on the same Code sections and the same decisions. However, the application of the law as applied to the allegations of the facts are viewed differently by counsel for each party. Counsel for the defendant contended that the allegations of the petition do not allege facts sufficient to entitle the plaintiff to recover. We have read all decisions cited by the parties. We are unable to conclude, from the allegations of the petition and the numerous decisions rendered by the Supreme Court and this court regarding the question before us, that the trial court committed reversible error in overruling the demurrers to the petition. It is not a question of a continuing nuisance, under the petition. The true rule is that the taking of property for public purposes cannot be done under our Constitution without first having paid adequate and just compensation therefor. We call attention to only a few of the decisions. See Austin v. Augusta Terminal Ry. Co., 108 Ga. 671 ( 34 S.E. 852, 47 L.R.A. 755) and Barham v. Grant, 185 Ga. 601 ( 196 S.E. 43). In Dougherty County v. Long, 93 Ga. App. 212 ( 91 S.E.2d 198) this court said: "The petition states a cause of action for damages for cutting off access from the street on which plaintiff's lot abuts, the lot being within a block from the obstruction. The exact question was ruled on in Felton v. State Highway Board, 47 Ga. App. 615 ( 171 S.E. 198). All of the arguments urged by the plaintiff in error are answered in that case and it is not necessary to repeat them." In City Council of Augusta v. Lamar, 37 Ga. App. 418 (1) ( 140 S.E. 763), Presiding Judge Jenkins, speaking for the court, said: "Under the Constitution of the State of Georgia, `private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.' Civil Code (1910), § 6388. Accordingly, if property is damaged, even by the prudent and proper exercise of a power conferred by statute, the owner is entitled to just compensation in an amount represented by the difference between the market value of the property before and after the procedure taken for public purposes."
By virtue of the above authorities (and there are many others to the same effect), the court did not err in overruling the demurrers, both general and special, to the plaintiff's petition as amended, and submitting to a jury the question of the difference in the market value of the plaintiff's property before and after the alleged damage.
Judgment affirmed on the main bill of exceptions. Cross-bill of exceptions dismissed. Townsend and Carlisle, JJ., concur.