Department of Transp. v. Whitehead, 66238

• Decision Date: 14 November 1983
• Docket Number: No. 66238,66238
• Citation: 169 Ga.App. 226,312 S.E.2d 344
• Parties: DEPARTMENT OF TRANSPORTATION v. WHITEHEAD.
• Court: Georgia Court of Appeals

Page 344

312 S.E.2d 344

169 Ga.App. 226

DEPARTMENT OF TRANSPORTATION v. WHITEHEAD.

No. 66238.

Court of Appeals of Georgia.

Nov. 14, 1983.

Rehearing Denied Dec. 6, 1983.

Certiorari Granted Jan. 19, 1984.

J. Matthew Dwyer, Jr., Atlanta, Michael J. Bowers, Atty. Gen., Robert S. Stubbs, Executive Asst. Atty. Gen., Marion O. Gordon, First Asst. Atty. Gen., John R. Strother, Jr., Thomas C. Dempsey, Beryl H. Weiner, Roland F. Matson, Asst. Attys. Gen., for appellant.

Harry L. Cashin, Jr., Atlanta, for appellee.

POPE, Judge.

This is a condemnation case in which the Department of Transportation (DOT), as condemnor, filed petition to take for public purposes a portion of property belonging to condemnee Cecil S. Whitehead, Jr. located at the corner of 19th Street and Peachtree Street near Pershing Point in Atlanta. Although the subject property has a West Peachtree Street address, part of that frontage is on Peachtree Street; West Peachtree Street and Peachtree Street merge at Pershing Point. The property condemned consisted of 5,540 square feet, taken from a total of 37,774 square feet, and constituted condemnee's entire road frontage on Peachtree/West Peachtree Street. DOT also acquired an adjoining temporary construction easement of 2,549 square feet of the remaining property. These takings were in connection with the construction of an entrance ramp to what will be the Buford Highway Connector (a limited-access highway) across the entire Peachtree/West Peachtree Street frontage of condemnee's property. There will be no vehicular access from condemnee's remaining property directly onto the ramp or onto Peachtree/West Peachtree Street after the ramp has been constructed; pedestrian access will continue. Upon completion of the ramp's construction, 19th Street will be permanently closed at its intersection with Peachtree Street, although access to the property will continue via 19th Street from Spring Street.

The jury returned a verdict in favor of condemnee in the amounts of $55,400 as the value of the property taken; $8,500 as the value of the easement taken; $67,000 as consequential damages to the remaining property with no consequential benefits to the remaining property. From the judgment entered upon this verdict and the denial of its motion for new trial, DOT brings this appeal.

1. DOT's first enumeration cites as error the trial court's admitting evidence concerning circuity of travel and general inconvenience to those using condemnee's property due to the closing of 19th Street at Peachtree Street. Before the taking condemnee's property was a corner lot with frontage on both Peachtree/West Peachtree Street and 19th Street. Condemnee had direct, unobstructed access to both streets, although the Peachtree/West Peachtree frontage was six feet above the grade of the street, and the only vehicular access provided and utilized was a driveway and parking lot located on the western portion of the property off of 19th Street. Vehicular access to 19th Street was available from either Spring Street or Peachtree/West Peachtree Street (both two-way streets). The actual taking by DOT was a strip of condemnee's property along the entire Peachtree/West Peachtree frontage and a portion of the 19th Street frontage at its intersection with Peachtree Street. The construction proposed as of the date of taking as it relates to the property taken was shown by certain exhibits and related testimony tendered into evidence by DOT without objection. This evidence showed that a portion of an entrance ramp to the Buford Highway Connector would be constructed on the property taken. As a result of this construction, vehicular access to condemnee's remaining Peachtree/West Peachtree Street frontage would be entirely eliminated. In addition, 19th Street would be closed at Peachtree Street, leaving Spring Street as the only remaining route by which vehicular access would be available to 19th Street and, thus, to condemnee's property. The evidence also showed that West Peachtree Street would become one-way north and Spring Street would become one-way south. As a result of this evidence, condemnee was allowed to present the evidence complained of which related to the circuity of travel and inconvenience to those attempting to use the remaining property resulting from the proposed construction. The construction was projected to be completed in three to six years.

"It is an elementary rule that the State must pay for property taken for a public purpose. [Cit.] The amount of damages shall include not only the value of the property taken, but shall also compensate for the consequential damage to the remaining property not taken. These consequential damages result from the actions of the State in severing a portion from the body of the condemnee's land and in interfering with his use and enjoyment of the remaining property. [Cit.] The consequential damage is damage that is specially suffered by the condemnee not suffered by the public in general. [Cits.]" State Hwy. Dept. v. Irvin, 100 Ga.App. 624, 626, 112 S.E.2d 216 (1959). The thrust of DOT's argument here is that the proposed closing of 19th Street at Peachtree Street and the proposed changes in the traffic patterns on Spring and West Peachtree Streets were damages suffered by all members of the general public and that condemnee's damages therefor differed only in degree from those suffered by the general public. Thus, DOT contends, condemnee suffered no damage special to him alone. Indeed, "[a] damage suffered by the condemnee which is different from that suffered by the general public in degree only, and not in kind, is not compensable or recoverable. [Cits.]" Dougherty County v. Snelling, 132 Ga.App. 540, 544, 208 S.E.2d 362 (1974), overruled on other grounds Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 365, 227 S.E.2d 362 (1976).

However, "[t]he owner of land abutting a street has an easement in the street, which includes the use of the street for the benefit of the land, including the right of ingress to and egress from the land. The owner's right is one peculiar and distinct to his lot, and differs from the right of the community in general to the use of the street. [Cits.]" Felton v. State Hwy. Bd., 47 Ga.App. 615, 616-7, 171 S.E. 198 (1933). " 'This easement of access is a property right, of which the landowner can not be deprived ... without just and adequate compensation being first paid to the owner. Under its power and discretion in the location, construction, and maintenance of State-aid roads, the State Highway Board [now DOT] can not deprive the owners of land abutting thereon of their easement of access, without first paying to such owners just and adequate compensation therefor.' [Cits.] 'In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the [owner] enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property, in excess of that sustained by the public generally... The damages ... that an individual may recover for injuries to his property need not necessarily 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 [use] or enjoyment growing out of and appurtenant to his estate as the direct consequence of the construction and use of any public improvement, his right of action is complete, and he may recover to the extent of the injury sustained... Accordingly, it has been held that interfering with access to premises, by impeding or rendering difficult ingress or egress, is such a taking and damaging as entitles the party injured to compensation under a provision for compensation where property is damaged.' [Cits.]" (Emphasis supplied.) Dougherty County v. Hornsby, 213 Ga. 114, 116-7, 97 S.E.2d 300 (1957); see also Cheek v. Floyd County, Ga., 308 F.Supp. 777, 780-1 (N.D.Ga.1970).

Prior to the taking condemnee had an easement of access to and from Peachtree/West Peachtree Street, although vehicular access via this frontage was not being utilized as the frontage was six feet above grade. As a result of the taking, vehicular access via the Peachtree/West Peachtree Street frontage had been completely eliminated and, as a result of the proposed construction, the remaining property would be at grade. Moreover, direct access to Peachtree Street via 19th Street would be cut off as a result of...