Brooks County v. Elwell, 28433.

• Decision Date: 05 October 1940
• Docket Number: No. 28433.,28433.
• Citation: 11 S.E.2d 82
• Parties: BROOKS COUNTY. v. ELWELL.
• Court: Georgia Court of Appeals

11 S.E.2d 82

BROOKS COUNTY.

v.ELWELL.

No. 28433.

Court of Appeals of Georgia, Division No. 2.

Oct. 5, 1940.

Syllabus by the Court.

1. Except as to certain language which is. ordered to be stricken from the petition the court did not err in overruling the special grounds of demurrer.

2. The petition set forth a cause of action for damaging private property for public purposes without just and adequate compensation having first been paid and was sufficient to amend by, and the amendment did not add a new and distinct cause of action.

3. The petition as amended set forth a cause of action and the court did not err In overruling the general demurrer thereto.

Error from Superior Court, Brooks County; W. E. Thomas, Judge.

Action by J. W. Elwell against Brooks County to recover for damages to the plaintiff's property because of the construction of an overpass and its approaches over railway. The defendant vouched the State Highway Department of Georgia into court to defend the action and subsequently vouched the city of Quitman. To review an adverse judgment, the defendant brings error.

Judgment affirmed, with direction.

J. W. Elwell filed suit against Brooks County and the defendant vouched the State Highway Department of Georgia into court to defend the action and subsequently vouched the City of Quitman. The petition alleged that (Par. 2) State route No. 77, leading from the pavement south of the courthouse in Quitman, Brooks County, Georgia, down South Court Street to the Florida line had, prior to the construction of an overpass and its approaches (known as Federal Aid Project No. 55313) over the A. C. L. Railway in the City of Quitman, been duly designated as a part of the system of the State-Aid roads by the State Highway Board, and at all times mentioned herein said road was under the jurisdiction of said highway department (Par. 3). During the year 1938 the said highway department changed the grade of said street and constructed on said street in said City of Quitman an overpass over the A. C. L. Railway tracks. The Northern approach to said overpass begins 750 feet from said railway tracks and gradually rises until it reaches the height of 30 feet, where it crosses the said tracks. The approach to said overpass has a white perpendicular concrete retaining wall from the point of beginning to said railway tracks, on the top of which is a concrete rail approximately three feet high.

In building said overpass said highway department cut down the middle row of giant oaks, approximately 100 years old, and left on each side of said northern approach a ground-level alley approximately 15 feet wide, which runs 750 feet to a deep, open ditch immediately north of said railway tracks, where a cul-de-sac is formed (Par. 4). Prior to the construction of said overpass and its approaches, South Court Street was approximately 135 feet wide, with three rows of giant oaks thereon. Said street was level, and all the houses on said street were built to the level of said street, and the occupants enjoyed a freedom of vision as to all traffic going to and fro on said street (Par. 5). Petitioner, at all times mentioned herein, was the owner of a city lot fronting east on said South Court Street a distance of 110 feet. At the time of the change in grade in said street and the erection of said overpass and its approaches, there was located on said lot a two-story frame dwelling house and a one-story storehouse and filling station combined, being No. 903 South Court Street. Prior to the construction of said overpass and its approaches, said residence and storehouse were located on a desirable, shady, residential street, and the landscape, with its three rows of giant oaks, was pleasing to the sight. Said property is located on the main road from Quitman to Greenville, Florida, and traffic passing between said two cities daily bought gas and groceries at said store. Since the construction of said overpass and its approaches, the glaring white retaining walls of said approach have taken the place of the middle row of said trees. The glare from same is so bright that petitioner can not sit on his front porch in comfort when the sun is shining, and the landscape is completely shut out of view. Said concrete retaining wall will average 30 feet in height in front of petitioner's property, and petitioner can not see across the street, nor can he recognize any one who passes over said overpass. Since said change in grade and said construction all traffic between Quitman and Greenville, Florida, is now forced over said overpass and can not stop in front of petitioner's property. The former ground-level road comes to a dead end in front of petitioner's store, and said State Highway Department has dug a deep ditch at the south end of petitioner's property immediately north of said railway tracks, which shuts off all traffic (Par. 6). Prior to the construction of said overpass and its approaches and the change in the grade of said South Court Street, said storehouse and filling station had a rental value of $40 per month, and a market value of $4,000, and said residence had a market value of $5,000. Since the said changes, and by reason thereof, said residence has a market value of only $1,000, and said store and filling station has been completely destroyed as business property, and its present market value is only $100. Said property, therefore, on account of said change in grade and the construction of said overpass, has depreciated in market value in the sum of $7,900, for which sum petitioner prays judgment (Par. 7). In thus changing the grade and constructing said approach and overpass, defendant has damaged and thus appropriated for public use the property of petitioner without any condemnation thereof, or payment therefor, and without the consent of petitioner (Par. 8). Petitioner brings this suit against the defendant county in accordance with Michie's Code, section 828 [828 (1)] et seq, and prays that said defendant vouch said Highway Department into court to defend this suit.

The defendant demurred generally to the petition on the grounds (1) that no cause of action was set forth against the defendant and (2) that the petition was an attempt to bring an action for taking and damaging property for public purposes without sufficient allegations of taking or damaging being shown as a basis for such legal action, and specially demurred as follows: "1. Defendant demurs specially to and moves to strike paragraph 3 of plaintiff's petition for the reason that the allegations in said paragraph which attempt to allege that plaintiff's property had been damaged by the erection of the overpass are not such allegations as would create any liability on defendant for the taking and damaging of private property for public purposes. 2. Defendant demurs specially to and moves to strike paragraph 4 of plaintiff's petition for the reason that the allegations in said paragraph which attempt to allege that plaintiff's property has been damaged by the erection of the overpass in question are not such allegations as would create any liability on defendant for the taking and damaging of private property for public purposes. 3. Defendant demurs specially to and moves to strike all of paragraph 5 of plaintiff's petition except [the first two sentences], for the reason that the remaining portion of said paragraph sets up itemsthat merely create an inconvenience to the plaintiff, and for mere inconvenience to the plaintiff on account of the construction of the overpass plaintiff would not be entitled to recover, and for the further reason that such items as are set forth seek to charge the defendant with the creation and maintenance of a continuing abatable nuisance for which the county would not be liable under the law. Neither does the plaintiff in said paragraph or elsewhere in said petition allege or show any title or right attaching to the row of shade trees alleged to have been removed from the middle of the street in the course of this construction. 4. Defendant demurs specially to and moves to strike paragraph 6 of plaintiff's petition for the reason that the allegations therein are clearly conclusions of the pleader without sufficient facts being alleged on which to base such conclusions. Defendant further specially demurs to and moves to strike that part of paragraph 6 pleading as follows: 'Said storehouse and filling-station had a rental value of $40 per month, and said store and filling-station has been completely destroyed as business property, ' for the reason that such allegations would not create any liability on the defendant for taking and damaging private property for public purposes, and are, therefore, improper allegations. 5. Defendant demurs specially to and moves to strike paragraph 7 of plaintiff's petition for the reasons that the allegations therein are clearly conclusions of the pleader without sufficient facts being alleged on which to base such conclusions."

Thereupon the plaintiff amended his petition by striking from the third paragraph the words "cut down the middle row of giant oaks, approximately 100 years old, and, " and by striking all of paragraph 8 and substituting therefor the following: "Petitioner brings this suit against the defendant county to recover the said damages to his private property, basing his said suit on all applicable provisions of the constitution and laws of this State, and particularly on the following: Article 1, section 3, paragraph 1 of the constitution of this State declares: 'Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.' The Georgia Code of 1933, section 95-1710, provides as follows: 'The State Highway Department shall defend all suits and be responsible for all damages awarded against any county under existing laws, whenever the cause of action origi nates on highways, jurisdiction over which shall have been assumed...