Fountain v. Metropolitan Atlanta Rapid Transit Authority
| Decision Date | 21 May 1986 |
| Docket Number | No. 71687,71687 |
| Citation | 179 Ga.App. 318,346 S.E.2d 363 |
| Parties | FOUNTAIN v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY. |
| Court | Georgia Court of Appeals |
George P. Dillard, Decatur, for appellant.
Barclay T. Macon, John E. Ramsey, Atlanta, for appellee.
If Medieval theologians could detect "twenty-nine distinct damnations" in a single verse of St. Paul's Epistle to the Galatians, as recorded in the poet Browning's "Soliloquy of the Spanish Cloister," 1 it should come as no surprise to members of another profession noted for drawing fine distinctions to receive a brief enumerating eighty (80) errors, derived from a 1,258-page trial transcript. Such is the situation in the appeal sub judice, in which Fountain, owner of a long-established but now defunct service station, appeals from the judgment in an inverse condemnation case in which a DeKalb County jury found that defendant/appellee Metropolitan Atlanta Rapid Transit Authority (MARTA) had not inversely condemned appellant's business property and therefore was not liable to him in damages.
In the early 1920's appellant's father and grandfather opened a service station at the intersection of East Lake Drive (running generally north and south) and College/West Howard/DeKalb Avenue (running generally east and west.) 2 East Lake Drive crossed the Georgia Railroad at a grade crossing between the two sections of the east-west artery, and the service station enjoyed a good business both from neighborhood "regulars" and from the hordes of transients who daily commuted to and from work on these two main routes between the Decatur/DeKalb County/Druid Hills area and various sites in downtown Atlanta. In 1959 appellant (who had succeeded his grandfather in the business) and his father moved the station across the tracks from the original, now somewhat confined, location on the southeast corner of the intersection, to the northeast corner, where there was sufficient space to erect a larger and more modern facility, plus room for possible expansion. Business continued to be brisk into the early 1970's, at which time preliminary work on the east-west MARTA line was commenced. There is some evidence of record indicating that in the original MARTA plans the East Lake Drive crossing was to be retained (although in modified form: as an underpass rather than at grade) and the existing street was to remain a thoroughfare traversing the railroad and MARTA tracks. Appellant alleges that this was affirmatively represented to him by a MARTA official, and that in fact he learned of the plans to close the crossing and reroute East Lake Drive (as was ultimately done) only incidentally, after it was too late financially for him to take steps to modify his business arrangements.
In 1976 MARTA condemned an unused area of appellant's property for a retention pond to accommodate an anticipated increase in drainage to be caused by MARTA construction. During the litigation attendant upon that condemnation, appellant Fountain testified that the taking of this portion of his property would cause a decline in profits, since he had planned to expand his station so as to include self-service facilities, and that the condemned property was needed for the projected updating and expansion. Fountain was compensated for this taking in an amount not disclosed in the record of the case at bar. 3 See Fountain v. DeKalb County, 238 Ga. 14, 231 S.E.2d 49 (1976); Fountain v. MARTA, 147 Ga.App. 465, 249 S.E.2d 296 (1978); Fountain v. DeKalb County, 154 Ga.App. 302, 267 S.E.2d 903 (1980).
During the course of the construction of the MARTA line, access to appellant's property was at various times interfered with and diminished in that one or more of the several entrances to his station (but apparently never all at once) was blocked by contractors' equipment or construction materials or by construction activity. Ultimately, East Lake Drive was rerouted so that appellant's property, which formerly sat astride the "going to work" corner (i.e., on the right side of both intersecting streets for Atlanta-bound motorists) where two main arteries intersected, ended up as the sole property fronting on a dead-end spur off the new East Lake Drive. Business declined rather steadily during the more than three years of construction activity, and in March 1978 appellant closed his station. He has subsequently installed a truck rental facility on the premises, and the stub of the formerly busy thoroughfare, in addition to providing ingress and egress for persons seeking to rent trucks, now serves de facto as a free parking lot. According to appellant's testimony, income from the present use of the property is far below that derived from its use as a service station.
In January 1981 Fountain filed simultaneous actions against MARTA in the Superior Court of Fulton County and the U.S. District Court for the Northern District of Georgia, alleging violations of rights guaranteed under state and federal constitutions and laws. In June 1981 the case was ordered placed on the superior court's inactive calendar for six months pending the decision of the federal courts. The Eleventh Circuit found that appellant stated a federal claim for the denial of an economically viable use of the property without payment of just compensation, but directed the District Court to abstain while the superior court, in the exercise of its concurrent jurisdiction, made its determination. Fountain v. MARTA, 678 F.2d 1038 (11th Cir.1982).
At the close of the evidence in the state action, appellant unsuccessfully moved for a directed verdict on the issue of liability. A jury returned a verdict in favor of defendant/appellee MARTA. After denial of his motions for judgment notwithstanding the verdict and for a new trial, Fountain appealed to the Supreme Court, which transferred the appeal to this court. Held:
1. Appellant contends in the first of his eighty enumerations of error that the trial court erred in denying his motion for a directed verdict on the issue of liability--i.e., whether or not a compensable taking occurred. For the reasons set forth in the following paragraphs, we agree with appellant that denial of his motion was error.
"If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed." OCGA § 9-11-50(a). A directed verdict is improper where the evidence strongly supports but does not demand a certain verdict, Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga.App. 679, 305 S.E.2d 361 (1983), or where there is a reasonable inference supported by evidence which would authorize a verdict to the contrary. Findley v. McDaniel, 158 Ga.App. 445, 280 S.E.2d 858 (1981). Direction of a verdict is proper "only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict." Carver v. Jones, 166 Ga.App. 197, 303 S.E.2d 529 (1983). The mere existence of conflicts in the evidence adduced does not preclude a directed verdict, however, if the conflicts relate to matters immaterial to the issue or issues on which the directed verdict is sought. Berger v. Ga. Power Co., 77 Ga.App. 672, 49 S.E.2d 668 (1948). Where the evidence demands that a jury find in favor of a certain party, it is proper to direct a verdict. Taylor v. Gill Equip. Co., 87 Ga.App. 309, 73 S.E.2d 755 (1952).
"Except as otherwise provided in this paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." Const. of Ga., Art. I Sec. 3, Par. 1(a). "Except in cases of extreme necessity and great urgency, the right of eminent domain cannot be exercised without first providing for just compensation to the owner for the interference with his exclusive rights." OCGA § 22-1-5. A compensable taking is not confined to the taking of the entire fee, nor does it necessarily consist of a physical invasion of the property. Dougherty County v. Hornsby, 213 Ga. 114, 97 S.E.2d 300 (1957). The taking of any property interest, including, inter alia, the easement of access to a public road or street upon which the property abuts--that is, the right of ingress and egress--may constitute such a taking as is contemplated by relevant constitutional provisions and statutory law. Metropolitan Atlanta Rapid Transit Auth. v. Datry, 235 Ga. 568, 220 S.E.2d 905 (1975); State Hwy. Dept. v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557 (1966).
In order to be compensable, however, the injury resulting from the taking must be peculiar to the complaining owner or occupant, as distinguished from that experienced by the general public; if the plaintiff's injury is merely greater in degree than that of the general public but is of the same kind, then his injury is not compensable. Dougherty County v. Hornsby, supra. The owner of property abutting upon a public road has rights of ingress and egress which do not belong to the public generally. State Hwy. Dept. v. Lumpkin, supra. The owner of land abutting on the public road is not per se entitled, as against the public, to access to his land at all points on the boundary between the property and the road. When his easement of access has been interfered with, however, he must be offered a convenient access to his property and the improvements thereon, and his means of ingress and egress must not be substantially interfered with. Johnson v. Burke County, 101 Ga.App. 747, 115 S.E.2d 484 (1960). This court has held that even the property owner whose property did not directly abut on the changed or rerouted street but was within the same block would be entitled to compensation if a usual, direct, and immediate means of access thereto or...
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