Elbert County v. Swift
| Decision Date | 24 May 1907 |
| Docket Number | 220. |
| Parties | ELBERT COUNTY v. SWIFT. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The damages recoverable under the provisions of the Constitution of 1877 are for substantial injury to private property, real damage affecting the market value, and not speculative or imaginary damage affecting only the natural beauties of the property.
[Ed Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 237.]
Claims against counties must be presented by written demand to the proper county authorities within 12 months after such claims accrue or become payable, or the same are barred, unless held by minors or persons laboring under disabilities. Where it appeared from the evidence that the above requirement had not been complied with, a verdict against the county was unauthorized.
[Ed Note.-For cases in point, see Cent. Dig. vol. 13, Counties, § 315.]
Error from City Court of Elberton; P. P. Proffitt, Judge.
Action by T. M. Swift, for the use of J. Y. Swift, against Elbert county. Judgment for plaintiff, and defendant brings error. Reversed.
C. P Harris, for Plaintiff in error.
Z. B Rogers, for defendant in error.
T. M. Swift, for the use of J. Y. Swift, brought suit against Elbert county for damages to land. The trial court overruled a demurrer, and the case was submitted to a jury, which returned a verdict in favor of the plaintiff for $175. A motion for a new trial was made and denied. The defendant excepts to the judgment overruling the demurrer and to the refusal to grant a new trial. This court will not consider the question made by the demurrer, but will decide the case on the merits, as shown by the facts.
The plaintiff was the owner of a certain tract of land located on the public road from Elberton to Petersburg. This tract of land had no improvements upon it, but by reason of many natural advantages, which are fully described in the petition and by the evidence, it was "unsurpassed in beauty and grandeur" as a site for a residence. Besides these natural advantages, it was located directly on the public road, which gave it additional value; and it was the intention of J. Y. Swift, who held the beneficial interest in the property, to erect on the same a family residence. The road which ran between Elberton and Petersburg and directly alongside this property had been the public highway for a long time, and it was by this road that ingress and egress was had to and from the property. The evidence is silent as to the value of the property in question, except that it was "chiefly valuable for a building site." In the spring of 1905 the commissioners of roads and revenues of Elbert county cut out, graded, and opened a new road. The new road leaves the old one some distance above the property in question, and comes back into it some distance below. Between this property and the new road there is an embankment of trees and bushes which completely hides the property from the road, "and is a gruesome and unseemly sight in front thereof." Although the old road was not closed up, it was practically abandoned by the traveling public, who preferred the new and better road. The old road, however still remained as a highway, and as a means of ingress and egress, into and from the property. The damage resulting to the property in question by the opening of the new road was alleged substantially as follows: The property could not be seen from the new road, and therefore its beauty as a building site was destroyed. The property was left off the traveled highway, because the old road is practically abandoned, and has not been worked by the county since the building of the new road. There was no way of getting to the new road from the property, or from the new road to the property, except through the intervening woods, or going for some distance on the old road. Instead of a valuable and beautiful residence site on a public road, which afforded easy access to it, it has become property without special advantages for residence purposes, located on an abandoned, unused, and unworked road. There is no evidence as to the market value of the property before the new road was opened, or since, and no evidence as to value at all, except the single statement, by the owner and his witnesses, that the property had been damaged at least $500 by the opening of the new road and the practical abandonment of the old road. All the witnesses for the plaintiff concurred in the opinion that the property in question was chiefly valuable as a building site because of its natural advantages and of its location alongside the old road, and that it had been damaged by the new road and the abandonment of the old road, for such use, from $500 to $1,000. This is a substantial statement of the material evidence for the plaintiff. ...
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