Clayton County v. Billups Eastern Petroleum Co., s. 39149
| Decision Date | 15 November 1961 |
| Docket Number | No. 1,39150,Nos. 39149,s. 39149,1 |
| Citation | 104 Ga.App. 778,123 S.E.2d 187 |
| Parties | CLAYTON COUNTY v. BILLUPS EASTERN PERTROLEUM COMPANY (two cases) |
| Court | Georgia Court of Appeals |
Syllabus by the Court
A petition alleging facts sufficient to authorize a jury to find a substantial impairment of an abutting property owner's right of ingress and egress by the conversion of the highway from an unlimited to a limited access road, though a service road is provided by which plaintiff's property can be reached indirectly, states a cause of action as against general demurrer. Such allegations of damage come within the constitutional prohibition against the taking or damaging of private property for public purposes without just and adequate compensation being first paid.
These cases were brought before this court on exceptions to separate orders overruling two general demurrers. The bill of exceptions in Case No. 39149 excepts to the overruling of the general demurrer filed to the original petition. The bill of exceptions in Case No. 39150 excepts to the overruling of the general demurrer to the petition as amended after the overruling of the original general demurrer.
The amended petition seeks damages for the destruction of the means of ingress and egress to property under lease to the plaintiff and used as a gasoline service station. The plaintiff's lease was dated February 4, 1953, for a term of 20 years terminating in 1973. The property leased was on the west side of a State highway sometimes known as U. S. Highway 41. Upon this property the plaintiff lessee had, since June 1, 1953, operated a gasoline service station for the sale of petroleum products and automobile accessories. At all material times prior to June 8, 1960, this highway was a four-lane highway, having separated paved traffic lanes, each of which carried two lanes of motor vehicle traffic north and south past the leased property. Vehicular traffic moving in either direction had practically unlimited ingress and egress to the service station. Between June 8, 1960, and August, 1960, the highway was improved by the State Highway Department in that a depression was created between the north and south bound lanes of the highway, and a service road was completed in front of the leased property. One entrance of this service road was approximately 960 feet north of the plaintiff's station and the other entrance was approximately 1,246 feet south of his station. During this same period the defendant completed the erection of a fence along the side of the service road and in front of the plaintiff's service station, thus making the service road the only means of ingress and egress to the plaintiff's station. The defendants contemporaneously erected a fence in the depression between the north and south bound lanes of the highway and in front of the plaintiff's service station, so that traffic traveling north was afterwards unable to enter the plaintiff's property except by a more circuitous route by traveling a long distance to a point at which it could cross over into the south bound lane and then proceed back to the service road.
All the construction performed during the improving of the highway by the defendant was done on the existing right of way. No part of the leased property was taken, no physical damages were done to the premises, and the plaintiff makes no claim for damage other than for its right of ingress and egress to the station and the highway which, it is alleged, constituted a taking or damaging of the property for public purpose which substantially destroyed this right of ingress and egress to the property, making the plaintiff's lease of no value.
To the petition as amended the defendant renewed its general demurrer, charging that the petition set forth no cause of action against the defendant. The trial court overruled the defendant's renewed general demurrer, to which ruling the defendant excepted.
Eugene Cook, Atty. Gen., Carter Goode, E. J. Summerour, Asst. Attys. Gen., John R. McCannon, Jonesboro, for plaintiff in error.
James E. Thomas, Alston, Sibley, Miller, Spann & Shackelford, Wm. B. Spann, Jr., Philip H. Alston, Jr., Atlanta, for defendant in error.
John L. Waston, Jr., Kemp & Watson, Jonesboro, for defendant.
The sole question here is whether a cause of action is stated for damage to property by a petition alleging facts sufficient to authorize a jury to find substantial impairment of an owner's right of ingress and egress directly to and from the highway where, as in this case, the highway is converted from an unlimited to a limited access road and there is provided at the time of the change a service road by which the plaintiff's property can be reached. Is such damage to be held to be compensable as a damaging of private property within the meaning of the constitutional provision in Art. I, Sec. III, Par. I (Code Ann. § 2-301), providing in part that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid?
In Pause v. City of Atlanta, 98 Ga. 92, 26 S.E. 489, the Supreme Court held that a tenant could recover for damages resulting to his leasehold estate sustained in consequence of the construction of a duly authorized public improvement. The Pause case was decided under the Constitution of 1877, which, in Art. I, Sec. III, Par. I, contained the same provision as the present Constitution of 1945. See Code Ann. § 2-301. While in the Pause case the court pointed out that under the Constitution of 1868 there was no prohibition against mere damage to property without just compensation, it held that the word 'damage' as added to the clause in the Constitution of 1877 embraced more than the mere physical taking of property. 'The damages, therefore, that an individual may recover for injuries to his property need not necessaily be caused by acts amounting to a trespass, or by an actual physical invasion of his real estate, but, if his property be depreciated in value by his being deprived of some right of user or enjoyment growing out of and appurtenant to his estate as the direct consequence of the...
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