Dougherty County v. Hornsby

• Citation: 213 Ga. 114,97 S.E.2d 300
• Decision Date: 13 March 1957
• Docket Number: No. 19605,19605
• Parties: DOUGHERTY COUNTY v. Ire HORNSBY.
• Court: Georgia Supreme Court

Page 300

97 S.E.2d 300

213 Ga. 114

DOUGHERTY COUNTY v. Ire HORNSBY.

No. 19605.

Supreme Court of Georgia.

March 13, 1957.

Eugene Cook, Atty. Gen., E. J. Summerour, Lamar Murdaugh, J. W. Smith, Asst. Attys. Gen., for plaintiff in error.

H. Grady Rawls, Albany, Robert B. Williamson, Sylvester, for defendant in error. Syllabus Opinion by the Court

MOBLEY, Justice.

1. This case is here upon the grant of a petition for certiorari from the Court of Appeals, Dougherty County v. Hornsby, 94 Ga.App. 689, 96 S.E.2d 326, that court having affirmed the judgment of the trial court overruling general and special demurrers to the petition as amended. The petition as amended and the demurrers thereto are set out in full in the opinion of the Court of Appeals. The petition alleges that the petitioner is the owner of Certain property fronting 405 feet along the north border of U. S. Highway No. 82 immediately west of where said highway interescts the Albany-Cordele Highway in Dougherty County; and that he operates upon said premises a drive-in restaurant and trailer court, both of which are largely dependent upon trade from traffic on U. S. Highway No. 82. The petition charges that: 'On or about July 15, 1955, the defendant herein had completed the installation of certain concrete curbing of the approximate height of eight (8) inches, along the side of said highway immediately in front of and adjacent to the south side of petitioner's property,' which he allages was 'unnecessary for the efficient use of the highway by the public, greatly impairs the ingress and egress to petitioner's property and thereby greatly depreciates its market value, all in violation of article I, section III of the Constitution of the State of Georgia, as embodied in Code Section (1933) 2-301, in that petitioner's property has been damaged for public purposes without just and adequate compensation being first paid.' He further alleges that this interference with the ingress and egress to his property resulted in a depreciation of $17,500 in the value thereof, the difference in the alleged value before and after the construction of the curb. While in paragraph 7 of the petition it is alleged that the highway constructed in front of his property provides for four-lane traffic, two lanes for east-bound and two for west-bound traffic, and that said lanes are separated by a concrete medium strip which requires east-bound traffic desiring to enter his premises to proceed approximately fifty yards beyond his place of business, make a U-turn at the intersection, and then come back that distance in the west-bound lane to his driveway on his property--it is not alleged that the defendant constructed said highway, or had anything to do with it. It is not alleged when said heghway was built, whether originally as a four-lane highway or whether it had been changed from two lanes to four, and if so, by whom, or when the medium strip was built, or by whom it was built; and, as stated, the petition does not allege that the defendant is in any way responsible for the condition complained of. In paragraph 8 the petitioner alleges that the concrete curbing along the width of his property has only three driveway entranxes approximately 20 feet in width and that any traffic entering his premises is hampered and deterred because of the insufficient width and the faulty construction which creates a depression in the driveway causing the bottom of cars to scrape in going in and out of the driveway; but he does not allege when the driveway entrances were built, who built them, or that the defendant is in any way responsible for their construction. In view of the fact that the petition fails to allege that the defendant constructed the medium strip, the four-lane highway, or the driveway entrances to his property, or is in any wise responsible therefor, a cause of action is not alleged against the defendant for any damages resulting from their construction.

Code, § 2-301 provides: 'Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.' 'Accordingly, if property is damaged, even by the prudent and proper exercise of a power conferred by statute, the owner is entitled to just compensation in an amount represented by the difference between the market value of the property before and after the procedure taken for public purposes.' City Council of Augusta v. Lamar, 37 Ga.App. 418(1), 140 S.E. 763, 764; Smith v. Floyd County, 85 Ga. 420, 11 S.E. 850; Hurt v. City of Atlanta, 100 Ga. 274, 281, 28 S.E. 65; Barfield v. Macon County, 109 Ga. 386, 388, 34 S.E. 596; Howard v. County of Bibb, 127 Ga. 291, 293, 56 S.E. 418; Towaliga Falls Power Co. v. Sims, 6 Ga.App. 749, 753(3), 754, 65 S.E. 844. 'Owners of land abutting upon a highway have the right to use and enjoy the highway in common with other members of the public; and in addition they have an easement of access to their land abutting upon the highway, arising from the ownership of such land contiguous to the highway, which 'easement of access' does not belong to the public generally, and which exists regardless of whether the fee of the highway is in said owners or not. (a) This easment 'includes the right of ingress,...