Department of Transp. v. Hardin, 28311

• Decision Date: 08 November 1973
• Docket Number: No. 28311,28311
• Parties: DEPARTMENT OF TRANSPORTATION v. N. A. HARDIN et al.
• Court: Georgia Supreme Court

Page 441

201 S.E.2d 441

231 Ga. 359

DEPARTMENT OF TRANSPORTATION v. N. A. HARDIN et al.

No. 28311.

Supreme Court of Georgia.

Nov. 8, 1973.

Syllabus by the Court

Where a limited access highway is constructed where no highway has been established, the landowner whose property is taken as a right of way for the highway does not have a right of access to the highway from his remaining property.

Arthur K. Bolton, Atty. Gen., Marion O. Gordon, G. Thomas Davis, Asst. Attys. Gen., Atlanta, Ken Stula, Deputy Asst. Atty. Gen., Athens, for appellant.

Fortson, Bentley & Griffin, Edwin Fortson, Athens, for appellees.

MOBLEY, Chief Justice.

The Department of Transportation, condemnor, appeals from the grant of the condemnees' motions to strike certain pleadings, to delay possession, and for summary judgment. Certificate for immediate review was signed by the trial judge.

The condemnor brought proceedings under Ga.L.1955, pp. 559-564 (Code Ann.Ch. 95-17A) to take described property for a limited access highway. It was alleged in paragraph 3 of the petition that the highway being a limited access highway, there is no necessity of condemning rights of access to the highway except at points where the limited access highway may require the acquisition of access rights to existing roads, streets, or highways.

The condemnees moved to strike this allegation of paragraph 3; to delay possession of the right of way until the condemnor complied with the statute under which it was proceeding as to tendering the sum estimated to be due for the access rights; and to grant summary judgment that the right of access to the limited access highway for which the right of way is being condemned is a property right for which the condemness must be compensated.

The condemnor filed a written brief in opposition to these motions, in which it asserted that the grant of the motions would violate the Constitution, Art. VII, Sec. I, Par. II (Code Ann. § 2-5402), in that the payment of compensation for access rights to a limited access highway would be a donation or gratuity; would violate the Constitution, Art. I, Sec. I, Par. XXIII (Code Ann. § 2-123), in that it would require the condemnor to plead and condemn that which it does not wish to plead and condemn; and would violate the due process clauses of the State and Federal Constitutions, in that it would deprive the state and the taxpayers thereof of their property without due process of law.

The trial judge entered an order which recited that the parties had stipulated that there is no existing public road within, abutting, or crossing the right of way sought to be condemned. The motions of the condemnees were granted under the authority of State Highway Dept. v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557, and the constitutional objections of the condemnor were overruled.

In State, Highway Dept. v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557, supra, this court granted certiorari to review the case of Lumpkin v. State Highway Dept., 114 Ga.App. 145, 150 S.E.2d 266, and thereafter affirmed the judgment of the Court of Appeals. The case involved a proceeding to condemn a right of way for a limited access highway, and the question for determination was whether a charge to the jury that it was their duty to award compensation for the tracts of land taken and 'for the easements of access taken' was erroneous. This court held that the condemnor had alleged in its pleadings that it was condemning the access rights and that it was bound by these averments. It was further held that one of the pertinent issues in the condemnation of a right of way for a limited access highway is the value of the right of access to the...