Klumok v. State Highway Dept.

• Decision Date: 07 March 1969
• Docket Number: No. 44046,No. 2,44046,2
• Parties: Sidney S. KLUMOK et al. v. STATE HIGHWAY DEPARTMENT
• Court: Georgia Court of Appeals

Page 722

167 S.E.2d 722

119 Ga.App. 505

Sidney S. KLUMOK et al. v. STATE HIGHWAY DEPARTMENT.

No. 44046.

Court of Appeals of Georgia, Division No. 2.

March 7, 1969.

Rehearing Denied April 4, 1969. Certiorari Denied Sept. 9, 1969.

Syllabus by the Court

Where land is condemned for use as a limited access highway, the condemnee whose land it divides is entitled to damages for loss of his right of access to and from the proposed highway, but this loss of access rights is merely an element of consequential damages to those portions of his land which are not taken.

Ray, Owens, Keil & Hirsch, Milton Hirsch, Columbus, for appellants.

Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Atlanta, Kelly, Champion & Henson, Forrest L. Champion, Jr., Columbus, for appellee.

BELL, Presiding Judge.

The condemnees took this appeal from a judgment of the superior court after jury trial fixing compensation for land taken for a limited access highway.

1. It was not error to admit opinion testimony of several witnesses which would have authorized the jury to conclude that there was present a reasonable possibility or probability of a change in the existing zoning restrictions, which would have an appreciable influence on the market value of the remaining portions of the condemnee's property. The evidence, although in sharp conflict, authorized the court's instructions to the jury allowing them to consider the effect of possible rezoning. Civils v. Fulton County, 108 Ga.App. 793, 796, 134 S.E.2d 453.

2. 'The Legislature cannot bestow upon one of its boards the right to take or damage private property for public use without just and adequate compensation. We have seen that the right of the owner of land abutting upon a public highway to an easement of access is a property right, and such right is protected under the Constitution of this state.' State Hwy. Board v. Baxter, 167 Ga. 124, 134, 144 S.E 796; Clayton County v. Billups &c. Petroleum Co., 104 Ga.App. 778, 781, 123 S.E.2d 187. See also Woodside v. City of Atlanta, 214 Ga. 75, 83, 103 S.E.2d 108; Bowers v. Fulton County, 221 Ga. 731, 737, 146 S.E.2d 884, 20 A.L.R.3d 1066. The right of access accrues simultaneously with the taking. See Lumpkin v. State Hwy. Dept., 114 Ga.App. 145, 148, 150 S.E.2d 266. 'One of the rights of a landowner is to pass across a highway from one tract or parcel of his lands to another situated on the opposite side. Indeed, to go upon and across the public road is one of the fundamental rights which belong to abutting landowners. * * * Before such right is taken from him, the stern mandate of the Constitution that 'private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid' must be obeyed. So, one of the pertinent issues in the condemnation of the right of way for a limited access highway is the value of this very right of access, the right to go upon and across the proposed highway.' State Hwy. Dept. v. Lumpkin, 222 Ga. 727, 729, 152 S.E.2d 557.

In State Hwy. Dept. v. Ford, 112 Ga.App. 270(2), 144 S.E.2d 924, this court held that where land is condemned for use as a limited access highway the condemnee is not entitled to damages, actual or consequential, for lack of access to the proposed highway by reason of any right of easement for ingress and egress to and from the highway. Both Ford and State Hwy. Dept. v. Geehr, 112 Ga.App. 664(2), 145 S.E.2d 736, which followed Ford, must yield to the authority of the Supreme Court in Lumpkin.

However, condemnee's right of access was a right appurtenant to those portions of the land which were not taken and was not a species of separate property. See Folsom v. Gate City Terminal Co., 128 Ga. 175(2), 57 S.E. 314; Ball v. State Hwy. Dept., ...