Summary
In Waters v. DeKalb County, 208 Ga. 741 (2a) (69 S.E.2d 274), it was ruled that "A cause of action for injury and damage to private property resulting from the construction of a road or highway by the State Highway Department accrues upon the completion of the project and its opening to traffic by the Board.
Summary of this case from Richmond County v. SibertOpinion
17702.
SUBMITTED JANUARY 17, 1952.
DECIDED FEBRUARY 13, 1952.
Reformation. Before Judge Guess. DeKalb Superior Court. September 27, 1951.
Carl T. Hudgins and Thomas O. Davis, for plaintiff.
Eugene Cook, Attorney-General, T. V. Williams and W. V. Rice, Assistant Attorneys-General, and J. A. McCurdy, for defendants.
1. A tenant of premises, although he has no estate in the land, is the owner of its use for the term of his rent contract, and can recover damages for any injury to such use resulting from the construction of a duly authorized public improvement.
2. When private property is damaged by the construction of a road over which the State Highway Department has assumed jurisdiction, and under circumstances where the county would have been liable under existing laws had the Highway Department not taken it over, the exclusive remedy afforded one whose property has been so damaged is an action against the county in which the public construction causing the damage was done. In such a case, the county is primarily liable; but the Highway Department, when vouched in by the county, is required to defend the action and pay all damages awarded against the county. Code, § 95-1710; Taylor v. Richmond County, 185 Ga. 610 ( 196 S.E. 37); Hardin v. State Highway Board, 185 Ga. 614 ( 196 S.E. 40); State Highway Board v. Perkerson, 185 Ga. 617 ( 196 S.E. 42).
( a) A cause of action for injury and damage to private property resulting from the construction of a road or highway by the State Highway Department accrues upon the completion of the project and its opening to traffic by the board. Code, § 95-1712; Felton v. Macon County, 43 Ga. App. 651, 654 ( 159 S.E. 730). It appears from the petition that the construction of the road which the plaintiff claims caused the injury and damage sued for was completed and the road opened to traffic on November 23, 1949, and this litigation was instituted June 20, 1950. This was a compliance with Code § 23-1602, which declares that "All claims against counties must be presented within twelve months after they accrue or become payable, or the same are barred." Dement v. DeKalb County, 97 Ga. 733 ( 25 S.E. 382); Habersham County v. Knight, 63 Ga. App. 720 ( 12 S.E.2d 129).
3. Misjoinder of parties or causes of action must be taken advantage of by special demurrer, and is not ground for general demurrer. Ga. R. Bkg. Co. v. Tice, 124 Ga. 459 ( 52 S.E. 916, 4 Ann. Cas. 200); McCullough v. Atlantic Refining Co., 181 Ga. 502 (2) ( 182 S.E. 898). In this case, so far as the record discloses, neither the original petition nor the petition as amended was demurred to specially.
No. 17702. SUBMITTED JANUARY 17, 1952 — DECIDED FEBRUARY 13, 1952.
On June 20, 1950, Hoyt R. Waters brought a suit in DeKalb Superior Court against W. O. Pierce and DeKalb County. Pursuant to the provisions of Code § 95-1710, and for the purposes provided thereby, DeKalb County vouched in the State Highway Department of Georgia. It appears from the petition, as amended, that the plaintiff leased, in writing, from the defendant Pierce, for restaurant use, described property in DeKalb County, for the period from May 15, 1947, to March 5, 1948, at a rental of $105 per week, plus 15% of his gross weekly sales in excess of $1050; and that the lessor also agreed that he might renew his lease for an additional period of five years, on the same rental basis, if he desired to do so. The leased property consisted of a concrete building, a paved parking area adjacent thereto and to Peachtree road, and certain restaurant equipment and furniture, and various facts were alleged for the purpose of showing its highly suitable location for a restaurant business. He opened his restaurant and began doing a profitable business on May 15, 1947. He renewed his lease, on the same rental terms, for the period from March 5, 1948, to March 5, 1949; and again on March 5, 1949, to March 6, 1950. On the last-stated date, he renewed the lease to March 6, 1955, on the same rental terms, and it was then agreed and understood between the parties that he, as lessee, if he desired to do so, might renew it, at the same rental amount, for an additional period of five years from March 6, 1955; but by mutual mistake, resulting from a typographical error on the part of the scrivener, the word "lessor" instead of the word "lessee" was written into the renewal clause, and the contract should be reformed so as to make it speak the agreement between the parties and thereby show that the "lessee" and not the "lessor" has the optional right to renew it for the five-year period following March 6, 1955.
It also appears from the amended petition that the defendant DeKalb County, on or about July 10, 1947, procured, by deed, a right-of-way easement from the defendant Pierce to be used by the State Highway Department of Georgia in the construction of a four-lane highway in DeKalb County, the same being a part of the highway system of roads under the jurisdiction of the State Highway Department; that the building and surrounding premises so leased to the plaintiff were located on the area embraced within the conveyed right-of-way; and that the leased building was removed therefrom on May 24, 1948, and relocated on a newly graded and unpaved area from 75 to 100 feet back of its former location. It also appears from the amended petition that the new highway or road was located directly in front of and adjacent to the area upon which the plaintiff's restaurant business was relocated; that the State Highway Department caused construction of the new highway to begin on or about July 10, 1947; and that it was not completed and opened to the public for travel until November 23, 1949; and the amended petition alleges in detail, and at great length, how the plaintiff's business, because of highway-construction operations, was interfered with, interrupted, lessened, and frequently closed down during the period from July 10, 1947, to November 23, 1949, and the resulting damage to his leasehold is laid at $15,000. It is also alleged that the plaintiff presented his claim for the damage thus caused to his leasehold to the defendant DeKalb County, and demanded payment of it on January 20, 1950, which was within twelve months after his right of action accrued. The prayers were for process; that his lease contract be reformed so as to make it speak the intention of the parties, and thereby show that the plaintiff as lessee, and not the defendant Pierce as lessor, has an option to renew it; that the plaintiff have a money judgment for the damages resulting from the injury complained of; and that he be granted general relief.
The defendant DeKalb County demurred generally to the petition, as amended, upon the ground that it stated no cause of action as to it. The State Highway Department of Georgia, as vouchee of DeKalb County, also demurred generally to the amended petition upon the following grounds: (1) the petition fails to set out any cause of action against DeKalb County or the State Highway Department of Georgia; (2) the allegations of the petition as a whole fail to set forth facts which would authorize the plaintiff to recover damages in any amount from DeKalb County or the State Highway Department; and (3) the petition does not as a whole, nor do any of its paragraphs or parts, show a cause of action against DeKalb County or the State Highway Department. It does not appear from the record that the petition was demurred to specially, though it is argued in the brief filed for the defendants in error, DeKalb County and the State Highway Department, that the amended petition was defective and should have been dismissed for a misjoinder of parties defendant and causes of action. The general demurrers were sustained, and the petition, as amended, was dismissed as to DeKalb County and the State Highway Department, as vouchee of DeKalb County. So far as the record shows, the defendant Pierce filed no pleadings. The plaintiff excepted.
1. Article I, Section III, Paragraph I, of our Constitution of 1945 (Code, Ann., § 2-301) emphatically declares that "private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid." The same provision appeared in the Constitution of 1877. Accordingly, if private property is taken or damaged for public purposes, even by the prudent and proper exercise of a power conferred by statute, the owner thereof is entitled to just and adequate compensation for the taking or the damaging thereof. It is argued, however, by counsel for DeKalb County and the State Highway Department that the allegations of the petition as amended in the instant case affirmatively show that the plaintiff has no property in the leased premises that comes within the meaning and protection of the above-quoted constitutional guarantee; and, as authority for this position, they cite and rely upon Code § 61-101 to show that no estate passes out of the landlord to the tenant where the lease is for a period of less than five years. The position so taken is not tenable. This court held, by full-bench decisions, in Bentley v. City of Atlanta, 92 Ga. 623 ( 18 S.E. 1013), and Pause v. City of Atlanta, 98 Ga. 92 ( 26 S.E. 489, 58 Am. St. R. 290), that a tenant, although he has no estate in the land, is the owner of its use for the term of his rent contract, and can recover damages for any injury to such use resulting from the construction of a duly authorized public improvement. See also Bass v. West, 110 Ga. 698 ( 36 S.E. 244); Hayes v. City of Atlanta, 1 Ga. App. 25, 27 ( 57 S.E. 1087); City of Atlanta v. Hines, 39 Ga. App. 499 ( 147 S.E. 416); City of Rome v. LeCroy, 59 Ga. App. 644 ( 1 S.E.2d 759). Hence we hold in this case that the holder of a valid rent contract for realty, though it be for a period of less than five years, has a property right in the leased premises, which is protected by our constitutional provision declaring that private property cannot be taken or damaged, for a public use, without first paying just and adequate compensation for the same; and this is true whether the leasehold interest be taken or damaged by a county, a municipal corporation, or any other public organization. Smith v. Floyd County, 85 Ga. 420 ( 11 S.E. 850). There is no inconsistency between the ruling presently made and Code § 23-1502, which provides that a county is not liable to suit for any cause of action unless made so by statute. A right of action arises by necessary implication against a county when it violates a constitutional right of a citizen. Smith v. Floyd County, supra.
2, 3. These headnotes do not require elaboration.
Applying the principles of law dealt with in the foregoing divisions of this opinion, it was erroneous for the court to render the judgments complained of.
Judgment reversed. All the Justices concur.