Metropolitan Atlanta Rapid Transit Authority v. Datry

• Decision Date: 28 October 1975
• Docket Number: No. 30310,30310
• Citation: 220 S.E.2d 905,235 Ga. 568
• Parties: METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. v. David E. DATRY et al.
• Court: Georgia Supreme Court

Page 905

220 S.E.2d 905

235 Ga. 568

METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. v. David E. DATRY et al.

No. 30310.

Supreme Court of Georgia.

Oct. 28, 1975.

Rehearing Denied Nov. 24, 1975.

Huie, Brown & Ide, W. Stell Huie, R. William Ide, III, Charles N. Pursley, Jr., Atlanta, Thomas O. Davis, Harvey, Willard & Elliott, William S. Olsen, Decatur, for appellants.

Edward C. Wyatt, Steven J. Edwards, Douglas B. Warner, James M. McDaniel, Curtis R. Richardson, Decatur, for appellees.

INGRAM, Justice.

Defendants appeal from an order of the Superior Court of DeKalb County denying defendants' motion for summary judgment, granting plaintiffs' motion for summary judgment and enjoining the defendants, the City of Decatur, DeKalb County and the Metropolitan Atlanta Rapid Transit Authority and all their officials named in the complaint, 'from doing anything directly or indirectly, separately or jointly to proceed in the closing of the 100 block of Sycamore Street and the construction of the MARTA transit station in that block and the rails underground in that block until they first, as by law provided, tender and offer just and adequate compensation to the petitioners for the taking of the property rights of the petitioners that the court has found will be taken by the said parties in the course of completing this MARTA project . . .' We affirm the grant of injunctive relief by the trial court for the reasons stated in this opinion.

Plaintiffs David Datry, Joseph Maas and J. Lester Fraser, own commercial property on the south side of Sycamore Street in the City of Decatur known as 133 Sycamore Street. One of the owners, Mr. Datry, occupies the property at 133 Sycamore Street as lessee, and operates at that location a retail ladies wear business known as 'David's.' On May 13, 1975, the plaintiffs filed a petition, which they subsequently amended, in the superior court alleging that as owners of land abutting on Sycamore Street they owned fee simply title to the land extending to the center line of the street and that the City of Decatur's only interest in the street was an easement for street purposes. Plaintiffs alleged that the City of Decatur's proposed prohibition of vehicular traffic in the 100 block of Sycamore Street, except for emergency vehicles, would constitute an abandonment of its easement in the street and a taking of plaintiffs' access rights to the public street.

In addition, plaintiffs alleged that at least a portion of the proposed MARTA transit station and pedestrian mall, to be constructed by the defendants, would be located south of the center line of Sycamore Street directly in front of 133 Sycamore Street and would thus constitute a taking of plaintiffs' property fo public purposes. Plaintiffs also alleged that as a consequence of the construction their land 'will be subjected to the invasion of smoke, dust, dirt, fumes, odors, high-decibel noise, vibrations and other odious bombardments incidental to the use of large erath-moving machines,' and that this activity will constitute a nuisance and, to the extent it deprives plaintiff Datry of the operation of his business, it will constitute a taking of his property.

In their amended complaint, plaintiffs prayed that an injunction issue restraining the defendants from closing Sycamore Street and from commencing construction on the transit station and pedestrian mall until just and adequate compensation is first paid to the plaintiffs for the taking of their property.

The defendants filed answers and motions to dismiss the amended complaint for failure to state a claim. Their defense was that the prohibition of vehicular traffic in the 100 block of Sycamore Street by the City of Decatur would not constitute an abandonment of the city's easement or a closing of the street, because the street would remain open as a pedestrian mall. The defendants asserted that the MARTA transit station-pedestrian mall would be a use of the street consistent with the city's easement, would not constitute an additional servitude on plaintiffs' fee, and accordingly would not involve a taking of plaintiffs' property. Defendants also took the position that any injury plaintiffs might suffer from dirt, noise, etc., occasioned by the construction, would be compensable only in a suit for consequential damages and was not such a claim as would entitle plaintiffs to injunctive relief.

All parties to this litigation have stipulated that 'Sycamore Street is a public road and a highway and that no grant has been found of record or otherwise to the City of Decatur or any other governmental authority.' On the basis of this stipulation the trial court found that the City of Decatur has an easement by prescription and implied dedication for the public use of the right-of-way of Sycamore Street in the 100 block thereof and that the plaintiffs, as owners of land abutting Sycamore Street, hold fee simple title to the middle line of the street subject to the easement held by the City of Decatur. This finding is in accord with settled principles of Georgia law (see R. G. Foster & Co. v. Fountain, 216 Ga. 113, 123, 114 S.E.2d 863 (1960); Long v. Faulkner, 151 Ga. 837(1, 2), 108 S.E. 370 (1921)), and is not contested by the defendants. Therefore, we will accept this conclusion as legally correct.

A hearing was held on July 9, 10 and 11, 1975. On the first day of the hearing, the trial court reserved ruling on the plaintiffs' motion for judgment on the pleadings and the defendant MARTA's motion to dismiss until hearing evidence. The court sustained the City of Decatur's motion to dismiss. However, on July 11 the court rescinded and vacated the order dismissing the City of Decatur and reinstated the city as a party defendant. At the hearing, the trial court also ruled that 'insofar as that allegation in . . . plaintiffs' complaint that Sycamore Street is the principal means of access, ingress and egress to that parcel of land at 133 Sycamore Street, the court rules that it has been admitted in the pleadings by MARTA's failure to respond to that allegation and also it has been admitted by the City of Decatur and DeKalb County.'

The evidence adduced at the hearing showed that the current plans for the MARTA transit station and pedestrian mall are actually a combination of two separate plans developed independently by MARTA and the City of Decatur. Decatur first developed plans for the courthouse square in the early 1960's as part of a plan to revitalize the downtown area. The original plan called for the creation of a pedestrian mall around the courthouse and entailed a prohibition of vehicular traffic on the streets surrounding the square, including the 100 block of Sycamore Street.

The original MARTA plan developed in the mid 1960's called for the Decatur transit station to be located several blocks south of Sycamore Street along the existing railroad line. Subsequently, Decatur, DeKalb County and MARTA agreed to integrate the two plans and place the rapid transit line through downtown Decatur with the transit station constructed entirely beneath Sycamore Street and the mall.

In 1972, however, the combined project was redesigned. According to the new plan, the Charette Plan, the transit station will rise approximately eight feet above the surface of the ground with the pedestrian mall located the station. The Charette Plan is the current design for the combined project.

An excellent description of the combined project, as it will appear in the 100 block of Sycamore Street, is provided in the testimony of Mr. Manuel Padron, a civil engineer employed by MARTA. 'There would be, as you walk out of that particular store (plaintiffs' property) and you're facing north, you would be in front of a sidewalk about 16 feet wide as opposed to the present sidewalk of about eight to ten feet wide. After the first 15 or 16 feet, then the ground level or the finished mall level would begin to gradually terrace to reach the level that we have been talking about of eight feet which is the level of the top of the mall. There would be a landscaped terrace steps that are provided to avoid any feeling of a wall enclosing or blocking visually the front of the store.'

Other testimony adduced at the hearing disclosed that the present width of Sycamore Street, from curb to curb, immediately in front of plaintiff Datry's store is approximately 37 feet, and that the sidewalk is between eight to ten feet wise. These dimensions indicate that the center line of Sycamore Street lies between 26.5 and 28.5 feet from the front of the store and that the structure of the transit station-mall, which will be located approximately 16 feet from the store, will extend approximately 10 feet south of the center line in front of plaintiff's store. Land on the northern side of Sycamore Street has been acquired in fee simple by MARTA because the width of the transit station-mall will be greatly in excess of the present width of the street. There is no evidence in the record establishing the exact location of the underground rapid transit line, or subway. Several maps admitted into evidence at the hearing, however, suggest that the transit line itself will be placed a short distance to the north of the right-of-way of Sycamore Street in the 100 block.

The City of Decatur plans to close the 100 block of Sycamore Street to vehicular traffic when MARTA is ready to begin construction of the combined project which, prior to this litigation, had been scheduled for August, 1975. During the period of construction, MARTA has agreed to maintain the south sidewalks in the 100 block open to pedestrians and to provide five crosswalks over the construction site. After completion of the combined project, the widened sidewalk in front of plaintiff Datry's store will remain closed to vehicular traffic but will be open to pedestrians and emergency vehicles.

An agreement between MARTA and the City of Decatur was admitted...