Lumpkin v. State Highway Dept., No. 41850

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtEBERHARDT; FELTON; NICHOLS, P.J., and FRANKUM; NICHOLS; I am authorized to say that FRANKUM; PANNELL; I am authorized to say that JORDAN
Citation150 S.E.2d 266,114 Ga.App. 145
PartiesMrs. Quinton LUMPKIN v. STATE HIGHWAY DEPARTMENT
Docket Number2,3,Nos. 1,No. 41850
Decision Date06 July 1966

Page 266

150 S.E.2d 266
114 Ga.App. 145
Mrs. Quinton LUMPKIN
v.
STATE HIGHWAY DEPARTMENT.
No. 41850.
Court of Appeals of Georgia, Division Nos. 1, 2, 3.
July 6, 1966.
Rehearing Denied July 22, 1966.

Syllabus by the Court

Where the petition for condemning land for use as a limited access highway alleged that it sought 'to acquire by condemnation

Page 267

any and all rights of access, in, to and upon the right of way herein described, except such as are permitted or allowed by the State Highway Department of Georgia, as authorized by Georgia Laws 1955, p. 559, et seq.,' a charge authorizing the award of damages for the taking of the right of access is not error.

Erwin, Birchmore & Epting, Eugene A. Epting, Athens, for appellant.

Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Horace E. Campbell, Deputy Asst. Atty. Gen., Atlanta, Edwin Fortson, Athens, for appellee.

EBERHARDT, Judge.

A new trial was granted in this case because of the inclusion in the charge of an instruction to the jury that compensation should be awarded for the condemnee's loss of access rights to the proposed limited access highway. Grant of the new trial was squarely upon the authority of State Highway Department v. Ford, 112 Ga.App. 270, 144 S.E.2d 924.

Pretermitting the matter of whether the condemnee has access rights that must be condemned in the taking of his land for a limited access highway (see Code Ann. § 95-1704a), the charge as given was authorized by the allegations of condemnor's petition. While it is error to charge upon an issue made by the [114 Ga.App. 146] pleadings but unsupported by the evidence, (Western & Atlantic R. Co. v. Branan, 123 Ga. 692, 51 S.E. 650), only the opposite party can urge it as error, for invited error is harmless as to him who invites it. Noxon Rug Mills, Inc. v. Smith, 220 Ga. 291, 293, 138 S.E.2d 569. The allegation that it sought to condemn access rights was an invitation by the condemnor to the court to include that matter in the charge.

It is immaterial that the petition for condemnation is brought by the State or its agency, for 'A State is bound by her judicial pleadings and admissions, the same as private persons, and is entitled to no greater right or immunity as a litigant than they are. The doctrine of estoppel applies (in this respect) to the State just as it does to individuals.' 1 Herman, Law of Estoppel, § 197, cited with approval in Central Bank & Trust Corp. v. State, 139 Ga. 54, 57, 76 S.E. 587.

A lack of evidence as to the access rights is a matter about which the condemnor cannot complain, for it made the allegation and had the burden of proof. State Highway Dept. v. Smith, 111 Ga.App. 292(4), 141 S.E.2d 590.

Consequently, the grant of a new trial was error.

Judgment reversed.

FELTON, C.J., BELL, P.J., and HALL and DEEN, JJ., concur.

NICHOLS, P.J., and FRANKUM, J., concur specially.

JORDAN and PANNELL, JJ., dissent.

NICHOLS, Presiding Judge (concurring specially).

While I agree that the judgment of the trial court must be reversed and that generally the appellate courts will not overrule prior decisions when the case may be otherwise correctly decided, yet where as in a case like the one sub judice a point of law, which will be at issue in many cases before the trial courts, then the question of whether prior decisions should be overruled ought to be squarely faced.

Headnote 2 of the decision in State Highway Dept. v. Ford, supra, holds that under § 2 of the Act of 1955 (Ga.L.1955 pp. 559, 560; Code Ann. § 95-1701a),

Page 268

no right of ingress and egress to 'limited access' highways results from the ownership of property abutting such highways, and that therefore when property is condemned for a 'limited access' highway the owner of property, a part of which is condemned for such highway,[114 Ga.App. 147] cannot recover for the lack of ingress and egress because such right never existed.

In view of the recent decision of the Supreme Court in Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884, and after a review of older decisions of the Supreme Court, in the light of such opinion, I am now convinced that the decision in State Highway Dept. v. Ford, supra, which was followed in State Highway Dept. v. Geehr, 112 Ga.App. 664, 145 S.E.2d 736, is in conflict with the Supreme Court decisions and should be overruled.

In the Bowers case, supra, it was held that the owner of property being condemned for public purposes is entitled to just and adequate compensation, which is 'inclusive of damage to every species of property, real and personal, corporeal and incorporeal'. Such decision also quoted the following language from Woodside v. City of Atlanta, 214 Ga. 75, 83, 103 S.E.2d 108, "The term 'property' is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership, and that which is subject to be owned and enjoyed.' Wayne v. Hartridge, 147 Ga. 127, 132, 92 S.E. 937, 939. 'The term (property) comprehends not only the thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from the use.' 18 Am.Jur. 787, § 156.'

In State Highway Board v. Baxter, 167 Ga. 124(1), 144 S.E. 796, the Supreme Court in holding that the owner of property abutting a public road has a right of ingress and egress from such public roadway said: 'Owners of land abutting upon a highway have the right to use and enjoy the highway in common with other members of the public; and in addition they have an easement of access to their land abutting upon the highway, arising from the ownership of such land contiguous to the highway, which 'easement of access' does not belong to the public generally, and which exists regardless of whether the fee of the highway is in said owners or not.' In the corresponding division of the opinion it was held: 'This easement of access is a property right, which cannot be damaged or taken from such owner without due compensation.' And in Hard v. Housing [114 Ga.App. 148] Authority of the City of Atlanta, 219 Ga. 74, 132 S.E.2d 25, the Supreme Court laid at rest the contention that a property owner is not entitled to be paid for the enhancement in vlaue of his property resulting from the announced use of the property by the condemning Authority.

The Act of 1955 (Ga.L.1955, p. 559 et seq.: Code Ann. Ch. 95-17a) provides that property may be condemned for 'limited access' highways but makes no reference to the determination of...

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4 practice notes
  • Klumok v. State Highway Dept., No. 44046
    • United States
    • United States Court of Appeals (Georgia)
    • 7 Marzo 1969
    ...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 situa......
  • State Highway Dept. v. Lumpkin, No. 23730
    • United States
    • Georgia Supreme Court
    • 10 Noviembre 1966
    ...its petition and that if no evidence was submitted concerning the issue the condemnor could not complain. Lumpkin v. State Hwy. Dept., 114 Ga.App. 145, 150 S.E.2d 266. The rule is established that in condemnation proceedings the burden of proof rests on the condemnor to prove just and adequ......
  • Department of Transp. v. Hardin, No. 28311
    • United States
    • Supreme Court of Georgia
    • 8 Noviembre 1973
    ...v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557, supra, this court granted certiorari to review the case of Lumpkin v. State Highway Dept., 114 Ga.App. 145, 150 S.E.2d 266, and thereafter affirmed the judgment of the Court of Appeals. The case involved a proceeding to condemn a right of way for a l......
  • Rush v. Southern Property Management, Inc., Nos. 45180-45237
    • United States
    • United States Court of Appeals (Georgia)
    • 11 Marzo 1970
    ...Martin v. Hendon, 224 Ga. 221, 223, 160 S.E.2d 893; McAdoo v. Martin, 24 Ga.App. 485, 101 S.E. 312; Lumpkin v. State Highway Dept., 114 Ga.App. 145, 150 S.E.2d 266, affirmed, 222 Ga. 727, 152 S.E.2d (b) Lastly, no error was committed by the trial court in ordering the disbursement of the fu......
4 cases
  • Klumok v. State Highway Dept., No. 44046
    • United States
    • United States Court of Appeals (Georgia)
    • 7 Marzo 1969
    ...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 situa......
  • State Highway Dept. v. Lumpkin, No. 23730
    • United States
    • Georgia Supreme Court
    • 10 Noviembre 1966
    ...its petition and that if no evidence was submitted concerning the issue the condemnor could not complain. Lumpkin v. State Hwy. Dept., 114 Ga.App. 145, 150 S.E.2d 266. The rule is established that in condemnation proceedings the burden of proof rests on the condemnor to prove just and adequ......
  • Department of Transp. v. Hardin, No. 28311
    • United States
    • Supreme Court of Georgia
    • 8 Noviembre 1973
    ...v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557, supra, this court granted certiorari to review the case of Lumpkin v. State Highway Dept., 114 Ga.App. 145, 150 S.E.2d 266, and thereafter affirmed the judgment of the Court of Appeals. The case involved a proceeding to condemn a right of way for a l......
  • Rush v. Southern Property Management, Inc., Nos. 45180-45237
    • United States
    • United States Court of Appeals (Georgia)
    • 11 Marzo 1970
    ...Martin v. Hendon, 224 Ga. 221, 223, 160 S.E.2d 893; McAdoo v. Martin, 24 Ga.App. 485, 101 S.E. 312; Lumpkin v. State Highway Dept., 114 Ga.App. 145, 150 S.E.2d 266, affirmed, 222 Ga. 727, 152 S.E.2d (b) Lastly, no error was committed by the trial court in ordering the disbursement of the fu......

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