Department of Transp. v. Taylor

• Decision Date: 28 February 1994
• Docket Number: No. S93G0971,S93G0971
• Citation: 440 S.E.2d 652,264 Ga. 18
• Parties: DEPARTMENT OF TRANSPORTATION v. TAYLOR.
• Court: Georgia Supreme Court

Page 652

440 S.E.2d 652

264 Ga. 18

DEPARTMENT OF TRANSPORTATION v. TAYLOR.

No. S93G0971.

Supreme Court of Georgia.

Feb. 28, 1994.

Reconsideration Denied March 18, 1994.

J. Matthew Dwyer, Jr., Anne W. Sapp, Sp. Asst. Attys. Gen., Dwyer & White, Atlanta, for Department of Transp.

Richard D. Ellenberg, Ellenberg & Associates, P.C., Thomas A. Bowman, Atlanta, for Taylor.

Charles N. Pursley, Jr., Pursley, Howell, Lowery & Meeks, Atlanta, for amicus appellant.

Jo Lanier Meeks, Pursley, Howell, Lowery & Meeks, Atlanta.

FLETCHER, Justice.

We granted certiorari in Dept. of Transp. v. Taylor, 207 Ga.App. 707, 429 S.E.2d 108 (1993), to consider whether the case involves a taking or obstruction of existing access rights which would authorize introduction of evidence of circuity of travel and inconvenience caused by the project to establish consequential damages to the remainder of Taylor's property. Because we find that it does not involve such a taking, we reverse Division 1 of the Court of Appeals' opinion.

This DOT project involves the widening and improving of the Moreland Avenue/I-20 bridge in Atlanta. Taylor's property is bounded on the north by DOT property previously acquired for I-20 and on the east by Moreland Avenue. As a part of the project DOT filed this action to acquire 0.076 acres of Taylor's land. When this action was filed, Taylor's property was accessed by three driveways to Moreland Avenue and had no access to I-20.

As a part of his consequential damages claim, Taylor asserted damages based on loss of convenient access to Moreland Avenue. Because the three new driveways accessing Taylor's property to Moreland Avenue are the same width, at the same location on the Moreland Avenue right of way and have not otherwise been physically changed, the trial court granted DOT's motion in limine excluding evidence relating to circuity of travel, changes in volume, direction or flow of traffic on Moreland Avenue or I-20, a stop sign on the I-20 exit ramp, changes in lanes, and changes in use of DOT's previously existing I-20 property.

The Court of Appeals reversed holding that, while providing no separate or independent basis for compensating Taylor, evidence "such as any change in traffic flow or pattern, the location of the exit ramp and the replacement of a stop sign with a yield sign, the configuration of the lanes on Moreland Avenue, and the expected traffic activity resulting from the use of the strip of property taken" is admissible for the limited purpose of showing the degree of impairment to the right of access to the property in question.

1. Taylor seeks to introduce evidence of circuity of travel and inconvenience caused by traffic flow and traffic patterns for the purpose of enhancing his claim for consequential damages to his remainder property. In a land condemnation case, consequential damage is damage that will naturally and proximately arise to the remainder of the owner's property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned, including its proper maintenance and operation, and the measure of these consequential damages is the diminution in the market value of the remainder of the property proximately arising from these causes ... [cits].

Dept. of Transp. v. Simon, 151 Ga.App. 807, 810, 261 S.E.2d 710 (1979). Therefore, Taylor's recoverable consequential damages are limited to those damages naturally and proximately arising from the taking of the 0.076 acre tract and devoting it to the public purpose for which it is condemned. Mason v. Dept. of Transp., 159 Ga.App. 471, 283 S.E.2d 690 (1981).

2. When property is contiguous to a public road, the right of access or easement of access to such public road is a property right arising from the ownership of such land. ¹ MARTA v. Datry, 235 Ga. 568, 575, 220 S.E.2d 905 (1975). When this action was filed Taylor's access to Moreland Avenue was by means of three driveways.

3. As a result of this DOT project, Taylor claims that traffic patterns will cause a change in the traffic flow in front of his property at its points of access, the three driveways on Moreland Avenue, making it more difficult to enter and exit his remaining property.

(a) In order to determine whether inconvenience of access to a public road is compensable, in this case a factor which can be considered in determining consequential damages to the remainder, it must first be determined whether the inconvenience is that which is shared by the public in general, which is not compensable, or that which is special to the landowner, which is compensable. MARTA v. Fountain, 256 Ga. 732, 733, 352 S.E.2d 781 (1987).

(b) Inconvenience shared by the public in general, such as changing the traffic pattern from two-way to one-way traffic, Dept. of Transp. v. Katz, 169 Ga.App. 310, 312 S.E.2d 635 (1983); placing a permanent dead end across a road a short distance from the property, Tift County v. Smith, 219 Ga. 68, 131 S.E.2d 527 (1963); circuity of travel, i.e., changes resulting in longer drive to reach a particular destination, Floyd County v. Griffin, 109 Ga.App. 802, 137 S.E.2d 483 (1964), State Highway Department v. Cantrell, 119 Ga.App. 241, 166 S.E.2d 604 (1969); and change of traffic pattern, Dougherty County v. Snelling, 132 Ga.App. 540, 208 S.E.2d 362 (1974) are not compensable. Such cases illustrate examples of damages arising from the entire project which are shared by the public in general. "We agree with [DOT] that greater difficulty in ingress and egress which is occasioned by a change in traffic patterns is not an appropriate item of damages in proceedings such as this." Dept. of Transp. v. Coley, 184 Ga.App. 206, 208, 360 S.E.2d 924 (1987).

Dept. of Transp. v. Whitehead, 253 Ga. 150, 317 S.E.2d 542 (1984) and Circle K General v. Dept. of Transp., 196 Ga.App. 616, 396 S.E.2d 522 (1990) are inapposite as each case involves a taking of an easement of access as a matter of law. In Whitehead, the property owner's direct access to Peachtree/West Peachtree Street was totally eliminated just as the property owner's direct access to Peachtree Industrial Boulevard was totally eliminated in Circle K General. Therefore, in those cases it was appropriate for the trier of fact to decide the extent of the impairment to existing access, as there had been interference with a special right.

(c) Before evidence pertaining to traffic patterns and traffic flow can be introduced for consideration of consequential damages, it must first be shown that the taking of part of the property, here the 0.076 acre tract, has interfered with a special right, the property owner's easement of access to the public road, here Moreland Avenue.

"[O]ne whose right of access from his property to an abutting highway is cut off or substantially interfered with ... has a special property [right] which entitles him to damages. But if his access is not so terminated or obstructed, if he has the same access to the highway as he did before the closing, his damage is not special, but is of the same kind, although it may be greater in degree, as that of the general public, and he has lost no property right for which he is entitled to compensation."

(Emphasis supplied.) MARTA v. Fountain, 256 Ga. at 733, 352 S.E.2d 781, quoting Tift County v. Smith, supra. (Emphasis supplied). Taylor does not dispute the Court of Appeals' finding that "it was undisputed that the driveways to Taylor's property were unchanged, other than being moved back a few feet." However, Taylor contends that, because at times merging traffic exiting I-20 onto Moreland Avenue will cause a backup of traffic resulting in increased difficulty entering and exiting his remaining property, the trial court erred in excluding evidence of change in traffic flow or pattern, the location of the exit ramp, configuration of lanes on Moreland Avenue, expected traffic activity and the like. Such evidence does not relate to inconvenience or difficulty of access caused by any physical alteration or obstruction to Taylor's former (pre-take) access; rather, it relates to inconvenience caused by traffic flow and traffic volume, an inconvenience shared by the public in general.

Unless the changes include items which amount to a taking of [Taylor's] property ..., such as installing curbs which prevent access to [his] adjacent property, the claim for damage is common with that which might be made by the general public, and is not recoverable.

Dougherty County v. Snelling, 132 Ga.App. 540, 544, 208 S.E.2d 362 (1974). The trial court did not err when it granted DOT's motion in limine ² excluding evidence which was not relevant to Taylor's recoverable damages.

4. Whether there is a compensable taking of an adjoining property owner's easement of access to a public road is a question of law to be determined by the court. MARTA v. Fountain, 256 Ga. at 734, 352 S.E.2d 781. In...