Fulton County v. Baranan
| Decision Date | 28 February 1978 |
| Docket Number | Nos. 33168 and 33199,s. 33168 and 33199 |
| Citation | 240 Ga. 837,242 S.E.2d 617 |
| Parties | FULTON COUNTY v. Aaron BARANAN. Aaron BARANAN v. FULTON COUNTY. |
| Court | Georgia Supreme Court |
Webb, Young, Daniel & Murphy, Paul Webb, Jr., Thomas L. Murphy, Atlanta, for appellant.
Thomas H. Antonion, Atlanta, for appellee.
Aaron Baranan brought an action against Fulton County to enjoin the anticipated illegal diversion of surface water onto his property. In Baranan v. Fulton County, 232 Ga. 852, 209 S.E.2d 188 (1974), he appealed from a judgment of the trial court which held that injunction will not lie to prevent county authorities from maintaining a public road because of threatened consequential damages to a property owner, where no part of his property is taken, and that the only redress the property owner has is to bring an action for damages. This court reversed this judgment, holding that a county may be enjoined from maintaining a continuing nuisance.
After the judgment of this court was made the judgment of the trial court, Baranan amended his complaint to allege damages he had suffered because of the completed diversion of surface water. The case was tried before a jury, which found that the county had created an abatable nuisance. The jury awarded damages of $400 to the date of the filing of the original complaint, $12,000 from the date of the filing of the complaint until the date that interlocutory injunction was granted on September 29, 1975, and $15,000 as punitive damages. Judgment was entered for permanent injunction and the damages awarded.
1. In Case No. 33168 Fulton County appeals from this judgment, asserting first that the court erred in submitting the issue of punitive damages to the jury because sovereign immunity prohibits an award of such damages against a county.
The attorney for Fulton County, in a conference between the court and the attorneys for the parties on the charge to be given to the jury, objected to the submission of the issue of punitive damages on the ground that there was no evidence of aggravating circumstances in act or intention; and after the charge was given, he objected to the form of the charge on punitive damages; but he made no objection to the charge on the ground that punitive damages may not be found against a county because of sovereign immunity. However, the submission of the issue of punitive damages against a county if erroneous, would be a substantial error harmful as a matter of law under Code Ann. § 70-207 ().
This is an issue of first impression in this State. In order to determine the question we must examine the basis for allowing damages to property owners whose property is damaged by the county for public purposes. Such damages are not given under the ordinary rules pertaining to torts. Code § 23-1502 provides: "A county is not liable to suit for any cause of action unless made so by statute." The right of a property owner to recover against a county for damages to his property because of public improvements made by this county is by reason of the constitutional provision (Constitution of 1976, Art. I, Sec. III, Par. I; Code Ann. § 2-301) that private property shall not be damaged for public purposes without just and adequate compensation being paid; and the measure of damages is the actual depreciation in market value of the premises resulting from the work done and the effect upon the property. See Smith v. Floyd County, 85 Ga. 420, 11 S.E. 850 (1890); Barfield v. Macon County, 109 Ga. 386, 34 S.E. 596 (1899); Terrell County v. York, 127 Ga. 166, 56 S.E. 309 (1906); Nalley v. Carroll County, 135 Ga. 835, 70 S.E. 788 (1910); Waters v. DeKalb County, 208 Ga. 741, 69 S.E.2d 274 (1952); DeKalb County v. McFarland, 223 Ga. 196, 154 S.E.2d 203 (1967).
Since the damages recoverable in a case like the present one are a substitution for the damages recoverable in a condemnation action, there is no constitutional or statutory authority for the recovery of punitive damages against a county. The trial judge, therefore, erred in submitting the issue of punitive damages to the jury.
2. Other errors enumerated by the county will not be considered, since we assume they will not reoccur on another trial.
3. In Case No. 33199 Baranan asserts that the court erred in not allowing him to prove damages to his...
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