Felton v. State Highway Bd.
| Decision Date | 27 September 1933 |
| Docket Number | No. 22636.,22636. |
| Citation | 171 S.E. 198,47 Ga.App. 615 |
| Parties | FELTON. v. STATE HIGHWAY BOARD et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where a street upon which a lot abuts is closed by an obstruction at an intersectingstreet, which, as respects the lot, makes the street upon which it abuts a cul-de-sac, although the obstruction is neither immediately in front of the lot nor touches the lot, and the obstruction thereby materially diminishes and curtails the right of the owner to the free and uninterrupted use of the street in front of the lot, as a means of access to and from different parts of the city, it constitutes a special damage to the lot, different in kind from that inflicted upon the community in general, and the owner has a right of action in damages therefor.
(a) It is immaterial that the lot is a corner lot and abuts also upon another street.
(b) It is also immaterial that there is an alley abutting on the rear of the lot, between it and the obstruction at the intersecting street, which alley runs from the street upon which the lot abuts to a parallel street, where the alley is not a street and an artery for traffic, and its presence does not render the obstruction in the street harmless to the lot owner's easement in the street.
2. It is not essential to the plaintiff's cause of action that it appear affirmatively from the petition that it is not barred by the statute of limitations. Where it does not appear from the petition that the action is barred, and the petition otherwise sets out a cause of action, it is error to sustain a general demurrer.
Error from Superior Court, Clarke County; Blanton Fortson, Judge.
Suit by J. W. Felton against the State Highway Board and others. To review a judgment sustaining a general demurrer to the petition, plaintiff brings error.
Reversed.
Jule W. Felton brought suit against the "State Highway Board" and the members thereof in a petition in two counts. He alleged in both counts of the petition that he was the owner in fee simple of a tract of land and the building thereon, situated in the town of Oglethorpe, lying, as illustrated by a plat attached, on the northwest corner of Crescent and Kelsoe streets, and Kelsoe street, which is fifty-five feet wide, abuts the lots on the east; that in the rear of the plaintiffs property, and connecting Kelsoe street and a parallel street to the west known as Macon street, is a fifteen-foot alley; that Kelsoe street runs north, and, after passing its intersection with the alley, crosses Chatham street, a street seventy feet wide, running east and west and connecting Kelsoe street with Macon street; that state highway routes Nos. 49 and 26, passing through the town of Oglethorpe, ran along Crescent street in front of plaintiff's property; that the defendant the state highway board relocated highway routes 49 and 26 and In so doing abandoned Crescent street and relocated the routes on a highway entering the town of Oglethorpe from the east and connecting with Chatham street, where it intersects with Kelsoe street, and running along Chatham street to the west; that, where the highway crosses Kelsoe street on Chatham street, the defendant erected an embankment or fill across Kelsoe street to a bridge over the railroad to the east of Kelsoe street and erected banisters and posts along the sides of the embankment; that the embankment is ten feet in height, and beyond the normal and former level of Kelsoe street; that, "if the banisters were removed and Kelsoe street raised at the present embankment in Kelsoe street, the approach to said highways would be dangerous and unsatisfactory because of the rise in said embankment from Kelsoe street east to said bridge, and the fall in the same from Kelsoe street to the normal level of the road west of Kelsoe street"; that the "embankment blocks and obstructs Kelsoe street and it is now impossible to enter Chatham street and the highway from either end of Kelsoe street"; that the obstruction in Kelsoe street caused damage to plaintiff's property which abuts on that street.
In the first count of the petition the plaintiff's damage is alleged in the sum of $4,000, the difference between the value of the property which was $5,000 before the erection of the obstruction, and its value of $1,000 after the erection of the obstruction. In the second count of the petition the plaintiff's damage is alleged in the diminution of the rents of the property in the sum of $50 per month, amounting to $1,450, and in the loss of rents continuing into the future by reason of the obstruction.
It is alleged in the petition that the construction of the highway was begun in 192S and was not finally completed until the year 1931, and that the embankment referred to was added to and increased during the year 1931. The petition was filed May 5, 1932.
A general demurrer to both counts of the petition was sustained, and the plaintiff excepted.
C. N. Davie and J. F. Kemp, both of Atlanta, for plaintiff in error.
J. S. Powell, of Sylvania, and W. K. Meadow, of Atlanta, for defendants in error.
STEPHENS, Judge (after stating the foregoing facts).
1. The 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. Campbell v. Metropolitan Street Railroad Co., 82 Ga. 320, 9 S. E. 1078; Central of Ga. R. Co. v. Garrison, 12 Ga. App. 369(2), 77 S. E. 193; Franklin v. City of Atlanta, 40 Ga. App. 319, 149 S. E. 326; Louisville & Nashville R. R. Co. v. Paschal, 44 Ga. App. 140, 160 S. E. 684. Any interference with this right by an obstruction of the street which inflicts upon him a damage and inconvenience respecting his lot, which is different in kind from that...
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People By and Through Dept. of Public Works v. Wasserman
...street rule that such street be available for travel and passage and therefore to some extent usable (see Felton v. State highway Board (1933) 47 Ga.App. 615, 171 S.E. 198, 200; City of Jackson v. Wright (1928) 151 Miss. 829, 119 So. 315, 317) even though such use might entail circuity of t......
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Department of Transp. v. Bridges, A96A0210
...damages incurred as a result of the dead-ending of a road within the same block as the property involved, citing Felton v. State Hwy. Bd., 47 Ga.App. 615, 171 S.E. 198 (1933), and Georgia Terminal Co. v. Temple Baptist Church, 144 Ga. 791, 87 S.E. 1023 (1916). The Court also recognized in T......
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Department of Transp. v. Whitehead, 66238
...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 an......
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Department of Transp. v. Whitehead, 40686
...him for the taking, irrespective of Whitehead's easement of access onto the abutting 19th Street. See, Felton v. State Hwy. Board, 47 Ga.App. 615(1)(a), 171 S.E. 198 (1933); Dept. of Publ. Works v. Wilson Co., 62 Ill.2d 131, 340 N.E.2d 12(6, 7) (1975); Thomas, Legal Implications of Control ......