Elbert County v. Brown

• Citation: 86 S.E. 651,16 Ga.App. 834
• Decision Date: 20 January 1915
• Docket Number: (No. 5558.)
• Parties: ELBERT COUNTY. v. BROWN.
• Court: United States Court of Appeals (Georgia)

86 S.E. 651

16 Ga.App. 834

ELBERT COUNTY.

v.BROWN.

(No. 5558.)

Court of Appeals of Georgia.

Jan. 20, 1915.

Opinion Filed Oct. 26, 1915.

(Syllabus by the Court.)

The cost of transportation may be a material factor in determining the worth of an article whose value is the subject-matter of inquiry, and the importance of this element is enhanced in proportion to the difficulty and expense necessarily incident to the transportation. Consequently a paragraph of a petition in which it was alleged that the cost of quarrying and hauling certain stone, the private property of petitioner (which, it was elsewhere alleged in the petition, the defendant had appropriated to its own use), was $50, and that by reason of this the stone was worth $50 more to the petitioner than the market value, was not subject to be stricken upon an oral motion. Although the paragraph may have contained defects which would have been subject to appropriate and timely special demurrers, an oral motion to strike performs merely the office of a general demurrer, and is ineffectual unless the pleading against which it is directed as a whole is fatally defective.

An assignment of error based on the refusal to award a nonsuit will not be considered, where the case has proceeded to verdict, and the defendant excepts to the verdict as without evidence to support it; for the latter exception presents for review the sufficiency of all the evidence adduced upon the trial.

The court did not err in admitting in evidence the original petition of the plaintiff, with the entry of filing and service thereon; for the bringing of the suit for the value of the plaintiff's property, within 12 months from the time of its appropriation by the county was a sufficient "presentation" of the claim, within the meaning of section 411 of the Code.

The Court of Appeals will not invoke instruction from the Supreme Court upon a point which, in the opinion of this court, has been plainly and unequivocally passed upon by that court, nor ask the Supreme Court to review a ruling, upon the ground that it is erroneous, because, as insisted by counsel, it conflicts with other rulings, when, in the decision which counsel seeks to have overruled, the rulings which he insists are in conflict therewith have been specifically referred to, analyzed, and distinguished.

One's right to recover the value of his property is not affected by the fact that he may have purchased it for much less than its value, and neither is his property right diminished or the value of his property to be depreciated by the fact that his title was obtained by gift.

A county is liable for the value of any private property taken by an agent, acting under general authority of the officer or officers charged with the management of the county affairs and the work of its public roads, which was needed to improve such roads and which was in fact so used.

The fact that the county commissioners, after knowledge that their agent charged with the working of the roads had negligently or by mistake taken private property without compensation and had used it in improvement of a public road, nevertheless retained possession of the property, will authorize the inference that the taking was ratified by the commissioners, so as to charge the county therewith and impose upon it liability for the value of the property so taken for public use. The right to compensation, which is dependent upon the constitutional prohibition that "private property shall not be taken, or damaged, * * * without just and adequate compensation being first paid" (article 1, § 3, par. 1), is not controlled by the ordinary rules governing rights ex contractu and ex delicto, but, being paramount in its nature, is enforceable regardless of technical classification, and the value of the property may be recovered without regard thereto, provided the property was taken by one authorized to act for the county, and was used for the benefit of the county, whether taken wrongfully or by virtue of a contract, express or implied.

The constitutional provision providing adequate compensation for private property taken for public use does not restrict the owner of the property to a recovery of the market value, and "adequate compensation" for property which the owner has designed for a special use, and of which he has been deprived for the public benefit without his consent, may include the cost or value of the article to the owner for the purposes for which he designed to use it.

(Additional Syllabus by Editorial Staff.)

Error from City Court of Elberton; Geo. C. Grogan, Judge.

Action by I. D. Brown against Elbert County. Judgment for plaintiff, and defendant brings error. Affirmed.

Z. B. Rogers, of Elberton, for plaintiff in error.

Pulliam Proffitt, of Elberton, for defendant in error.

RUSSELL, C. J. Brown sued Elbert county for the value of certain rock alleged to have been taken by the county and applied to its use in repairing public roads of the county. He sued for $175, and recovered $75. The county excepts to the overruling of an oral motion to strike the ninth paragraph of the plaintiff's petition, to the refusal to grant a nonsuit, and to the overruling of its motion for a new trial. On the trial the plaintiff proved that he had gathered a large quantity of stone for building purposes from the land of one Maddox, and had hauled the stone a mile to his land, preparatory to using it in the erection of a home and necessary outbuildings. He would procure as large loads of suitable rock as could be pulled over Maddox's land, and carry them to the public road, and then return for a second load, and thereupon haul both loads in one on the firmer traveled public road to his land. In this manner he had selected and assembled 25 unusually large two-horse loads of such stone as he desired to use in the improvement of his premises. The county warden, who was in charge of the repair of the roads in Elbert county (acting perhaps under misapprehension as to the direction given him by the county commissioners as to procuring stone), sent the county's teams and convicts for the plaintiff's stones, and took them and used them to repair a nearby public road. The plaintiff, on hearing that his selected building material had been taken by the county, made complaint to the chairman of the county commissioners, who did not affirm or deny his oral claim for payment, or orally ratify or condemn the act of the county warden. The plaintiff did not otherwise present any claim for damages to the county authorities, but filed the present suit within a few days after the stone was taken from him. Over objection, the court allowed proof as to the cost of the collection and hauling of the stone as a peculiar element of value in this case, and also permitted testimony in behalf of the plaintiff as to the special purpose to which he intended to put the stone. The point was also made that the plaintiff was not entitled to recover, because the county was not liable for a tort committed by one of its agents; but there was ample evidence to show that all work done by the county warden was under the general supervision and control of the county authorities, and it appeared that the stone taken from the plaintiff was never returned to him by the county authorities after they were fully cognizant that it had been taken and used

in repairing the road, and although the point where it was used was only a short distance from the place on his farm from which the stone was taken. The defendant introduced testimony in conflict with the plaintiff's evidence as to the material facts to which we have referred, but the probative value of this testimony was concluded by the finding of the jury.

1. We will deal first with the assignment of error directed to the ruling upon the defendant's oral motion to strike the ninth paragraph of the plaintiffs petition; for the ruling on this point was in a sense conclusive upon the merits of the petition as a whole. As a general proposition it is well settled that a county is not liable for the torts of its agents when the act committed was ultra vires, or when the act was within the scope of the agent's authority, but was performed in a manner violative of law. However, the compensatory provision that "private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid, " embodied in article 1, section 3, paragraph 1, of the Constitution (Civil Code, § 6388), is not strictly controlled by the same measure of damages as is applied when the compensation sought arises either ex contractu or ex delicto. The constitutional mandate is paramount to all legislative enactments, and the provision to which we have referred is self-enforcing, at least to the extent that the owner of private property must be compensated where it appears that his property has actually been taken and used for the public benefit, and the compensation is not necessarily restricted to the mere market value of the property taken.

The word "adequate" sometimes means that which is equal in size or value, but in its primary and more popular significance the concept of sufficiency and proportion so greatly preponderates as almost to exclude the idea of value abstractly considered and accurately computed; and hence, in the sense in which the term is generally understood, nothing can be said to be "adequate" which is not "equal to what is required; suitable to the case or occasion; fully sufficient; proportionate; satisfactory." Standard Dictionary. An owner cannot be adequately compensated for his private property, which a county sees fit to devote to the public use (whether it be taken in pursuance of permission by the county or wrongfully and forcibly taken), unless he is paid whatever may be its value to him for the purpose to which he intended to apply it. Under such circumstances, "adequate" means proportioned to the effects of the deprivation.

The ninth...