R. G. Foster & Co. v. Fountain, s. 20887

• Decision Date: 09 June 1960
• Docket Number: Nos. 20887,20894,s. 20887
• Citation: 216 Ga. 113,114 S.E.2d 863
• Parties: R. G. FOSTER AND COMPANY et al. v. Hattie H. FOUNTAIN. Hattie H. FOUNTAIN v. R. G. FOSTER AND COMPANY et al.
• Court: Georgia Supreme Court

Page 863

114 S.E.2d 863

216 Ga. 113

R. G. FOSTER AND COMPANY et al. v. Hattie H. FOUNTAIN.

Hattie H. FOUNTAIN v. R. G. FOSTER AND COMPANY et al.

Nos. 20887, 20894.

Supreme Court of Georgia.

June 9, 1960.

Syllabus by the Court

The demurrers of the defendants were properly overruled. The motions of the defendants for a directed verdict in their favor, and for a judgment notwithstanding the verdict, were properly denied. The verdict and judgment for the petitioner is supported by the evidence (except in part as to damages); the assignments of error in the amended grounds of the motions for new trial were not meritorious; and the judgments denying the motions for new trial are affirmed on condition.

Mrs. Hattie H. Fountain filed a petition for equitable relief against R. G. Foster and Company, a corporation, with an office and place of doing business in the county, and Carter Townsend, as foreman in charge of construction being conducted along U. S. Highway No. 1 in the City of Swainsboro. It was alleged: The petitioner is the owner of a lot or parcel of land fronting 87 feet on the west side of South Main Street, and extending back between parallel lines a distance of 200 feet, bounded on the north by Moring Street, east by South Main Street, south by C. G. Mixon, and west by of the property conveyed to the petitioner of the property conveyed to the petitioner in the division of an estate by deed dated June 5, 1923, and recorded in the office of the clerk of the superior court. Neither the petitioner, nor any of her predecessors in title, over conveyed any part of South Main Street to the public authorities or anyone else. The petitioner owns the property described to the center line of South Main Street, subject only to the rights the public have by implied dedication to use the present paved street from the center line of the street to the west side of the curb and gutter, and whatever rights the public might have to the property presently covered by a sidewalk which was constructed by the petitioner and the City of Swainsboro for sidewalk purposes. The west side of the curb and gutter is 17 1/2 feet from the center line of the street on the north end of the petitioner's property, and 15 feet from the center line on the south end of her property. The sidewalk is 5 feet wide, and the western side of the sidewalk is 26 1/2 feet from the center line of the street. At the time the petitioner acquired title to the property described, Main Street was a dirt street approximately 20 feet wide, and there was a path for foot travel approximately 2 feet wide, substantially in the same place as the present sidewalk. In 1927 or 1928, there was a program to pave South Main Street. The petitioner cooperated and allowed the street in front of her property to be paved, and paid an assessment as an abutting property owner of approximately $5 per front foot, as her share of the cost of paving the present street. Several months after the street was paved, a program was begun by the City of Swainsboro to construct a sidewalk parallel to the paved street. The petitioner cooperated and allowed her property to be used for the present sidewalk, and paid the assessment as an abutting property owner of approximately $7.50 per front foot. The land between the west side of the present curb and gutter and the east side of the present sidewalk is owned by the petitioner, and neither the City of Swainsboro nor anyone else owns any right, title, or interest therein. All property west of the present sidewalk is the property of your petitioner, and it has never been used not maintained by the City of Swainsboro, nor anyone else, except the petitioner and her predecessors in title. Recently a project was begun to widen U. S. Highway No. 1, including South Main Street. The contract for construction was awarded to R. G. Foster and Company by the State Highway Department of Georgia, and work was started on the widening of the highway. In September, 1957, the Highway Department started to file condemnation proceedings to condemn a portion of the petitioner's property. Attorneys for the department gave the original proceedings to the petitioner's son, R. H. Humphrey, with the request that he obtain an acknowledgment of service. Thereafter one of the attorneys for the State Highway Department requested that the condemnation proceedings be returned to them, that they had been instructed by the department not to file proceedings, because it was unnecessary; and such proceedings were never actually filed. The foreman for the contractor doing the work informed the petitioner's son that the contract provided for construction on all property along South Main Street within 30 feet of the center line of the street. The foreman was requested by the petitioner's son that neither he, nor any of the agents or employees of the contractor, go upon the petitioner's property until the matter could be adjusted. The employees of the contractor, under the direction of the foreman, went upon the petitioner's property and started breaking concrete along the sidewalk, and trespassed upon and damaged the petitioner's property on both sides of the sidewalk, and the foreman informed the petitioner that he had instructions to use all of the property within 30 feet of the center line of the street, including the property of the petitioner. Actual damage was done to the petitioner's property in the amount of $500, and the petitioner is entitled to punitive damages in an alleged amount. Unless the defendants are enjoined, they will commit other trespasses upon the petitioner's property and cause irreparable damage. If the highway is constructed as the petitioner has been informed that it will be, it will constitute a continuing trespass upon the petitioner's property, and her property will be taken without due process of law. The prayers were that the agents and employees of the defendants, and each of them, be temporarily and permanently enjoined from trespassing upon the petitioner's property, for rule nisi, for the recovery of accrual and punitive damages, and for other relief.

The defendants vouched the State Highway Department and the State Highway Board into court to defend the action, it being asserted that any liability against the defendant would be a primary liability of the department and of the highway board.

The defendants R. G. Foster and Company and Carter Townsend filed general and special demurrers. They filed an answer wherein they neither admitted nor denied that the petitioner was the owner of the property described; they denied that neither the petitioner, nor her predecessors in title, had ever conveyed any part of South Main Street to the public authorities, and that whatever rights the public might have to use the present paved street was by implied dedication; they neither admitted nor denied the allegations as to the curb and gutter being 17 1/2 feet from the center line of the street, and the distance from the center line to the west side of the sidewalk being 26 1/2 feet; they neither admitted nor denied the allegations that Main Street was a dirt street approximately 20 feet wide with a path for foot travel approximately 2 feet wide at the time the petitioner acquired her property; they denied that she allowed the paving referred to of the street and sidewalk, and that she was the owner of the property on the west side of the sidewalk; but neither admitted not denied that no one other than the petitioner and her predecessors in title had ever used the property on the west side of the sidewalk; the other allegations of the petition were denied.

The State Highway Department filed demurrers and an answer. By the answer it was denied that the petitioner is the owner of the lot described; that neither she nor her predecessors in title had ever conveyed any part of South Main Street to the public authorities; and that the petitioner was the owner of the property to the center line of South Main Street, subject to the rights of the public by implied dedication to use the present paved street and the property presently covered by the sidewalk. This defendant admitted that the petitioner cooperated in the program to pave South Main Street, and in the program to construct a sidewalk, but denied that she allowed the improvements, or that her consent was necessary in accomplishing the improvements. The allegations were admitted that there was a project to widen U. S. Highway No. 1, and that the contract had been awarded to the other defendant. The other allegations of the petition were denied.

The demurrers of the defendants were overruled. On the trial of the cause the jury returned a verdict finding in favor of the petitioner for a permanent injunction against the defendants, and property damage in the amount of $500. A judgment pursuant to the verdict was duly entered.

The defendants R. G. Foster and Company and Carter Townsend filed a joint motion for a judgment notwithstanding the verdict, wherein it was asserted that a motion for directed verdict was made at the trial at the close of the evidence, it being contended that the evidence demanded a verdict for the defendants, and that the evidence and the law demanded a verdict for the defendants 'at least as to that area in controversy lying on the eastward side of the western edge of the former sidewalk in front of the plaintiff's property.' The motion for new trial included therein was on the usual general grounds.

The State Highway Department filed a similar motion for a judgment notwithstanding the verdict and motion for new trial; the language in the motion filed by the defendants R. G. Foster and Company and Carter Townsend and the motion filed by the State Highway Department being in substance the same. Subsequently the defendants amended their motions for new trial and for a judgment notwithstanding the verdict, the amendments to the motions of the separate defendants being the...