State Highway Bd. v. Baxter, (No. 6518.)

• Court: Supreme Court of Georgia
• Writing for the Court: HINES
• Citation: 144 S.E. 796,167 Ga. 124
• Parties: STATE HIGHWAY BOARD et al. v. BAXTER.
• Docket Number: (No. 6518.)
• Decision Date: 19 September 1928

167 Ga. 124

144 S.E. 796

STATE HIGHWAY BOARD et al.
v.
BAXTER.

(No. 6518.)

Supreme Court of Georgia.

Sept. 19, 1928.

(Syllabus by the Court.)[144 S.E. 797]

Error from Superior Court, Liberty County; J. Saxton Daniel, Judge.

Petition by M. G. Baxter against the State Highway Board and others. Judgment for plaintiff, and defendants bring error. Affirmed.

M. G. Baxter filed his petition in Liberty superior court against McDonald Construction Company and H. E. Gilleneau, in which he made the following allegations:

(1) Said company has an agent and place of business in said county, and Gilleneau is a resident of said county.

(2) In 1926 petitioner and his mother conveyed to the highway department of Georgia a strip of land 50 feet wide, being one-half of the highway, and several hundred feet in length, in the town of Riceboro, said county, as a right of way for the Atlantic Coastal Highway (said conveyance covering the western half of said right of way, other persons owning the eastern portion), and being without any consideration, and based upon the representations hereinafter set forth.

(3) At the time and before the execution of said conveyance one ——, representing the grantee in said conveyance, represented to and promised petitioner that said Coastal Highway, when completed, would be left open in front of his residence and store building, and that the road leading into said highway from Riceboro station on the north side would intersect said highway at a point immediately in front of his residence, which is located just east of his store building.

(4) An overpass has been constructed over the Seaboard Air Line Railroad tracks in Riceboro, thus enabling the traffic on said highway to cross said tracks. The incline on said overpass on the north side of said railroad tracks ends and the highway becomes level at a point just east of said residence.

(5) Petitioner annexes a rough sketch of the location of said highway, said side road, said railroad tracks, and his residence and store building, in order that the court may understand the facts in the case, marks the same Exhibit A, and makes it a part of the petition. (No such exhibit appears from the record.)

(6) Petitioner owns and operates a grocery store, and in connection therewith a lunch room, just off the right of way of said highway on the western side thereof, and his business is largely dependent upon the travelers over said highway, and heretofore he has done quite a heavy trade from said travel, and confidently expects that his business will increase from now on, on account of the fact that said highway has just been paved and the traffic thereon will necessarily increase.

(7) Said company and Gilleneau are threatening to extend the fence being built on said incline of said overpass on the north side of the railroad to a point 100 feet north of the point where said highway becomes level. If the defendants are allowed so to construct said fence, the same will cut off petitioner from said highway, and will block the entrance of travelers and traffic on said highway to his store and lunch room.

(8) There is no necessity for the extension of said fencing on said level ground. No right has ever been granted to erect any fencing on said land, and when said right of way was granted it was represented and promised to petitioner that said road would be left open in front of his residence and store.

(9) Defendants are undertaking and threatening to do unnecessary, improper, illegal, and unjustifiable damage to petitioner, in undertaking to erect said fence on said level ground in front of his residence, store, and lunch room; and, if they are allowed to erect said fence, the same will mean that petitioner's property will be irreparably damaged and ruined as a location, his business will be irreparably damaged, and said acts on the part of said defendants will amount to a confiscation of his property and business without compensation, and without any right or necessity therefor.

(10) In connection with his grocery store and lunch room petitioner sells cold drinks, candies, crackers, etc., and travelers on said highway frequently stop and purchase the same, as well as lunches and groceries, of all of which he will be deprived, if said fence is erected. If said fence is built, in order for him to get to his own residence from the Jacksonville end of said highway, it will be necessary to travel on north, go around the fence, and then turn back south to his residence; whereas, if said fence is not built, petitioner, as well as all other persons, may turn off in front of his residence and travel thereto and to his store and lunch room.

(11) His damages will be irreparable. He prays that the defendants be enjoined from erecting any fence, posts, or other obstruction on said highway north of, or in a northerly direction from, a point immediately in front of the corner of his residence nearest to said railroad.

By an amendment the petitioner alleged that since the service of the original temporary restraining order the defendants are threatening to dig a ditch along said highway and the portion thereof referred to in said order. If the acts so threatened are permitted, the same damage will accrue to petitioner as would accrue if the fence, or posts, or other obstructions that are referred to in his petition are permitted. He prays that the defendants be restrained from digging said ditch. By later amendment he alleged as follows:

(1) Since the granting of the temporary restraining order he is informed that H. J. Friedman, division engineer of the highway

[144 S.E. 798]

board, and P. M. Hendrix, local foreman of said highway at Riceboro, are threatening to dig a ditch along the edge of said highway and along the side thereof, and within the area included in the restraining order, in direct violation thereof.

(2) Upon receiving such information petitioner went to Hendrix and advised him that the court bad passed an order restraining the digging of said ditch, and tendered to Hendrix the original restraining order so passed, which he refused to look at or read, and replied that, unless he was served with papers, he intended to dig said ditch. Counsel personally advised Hendrix of the issuance of the restraining order. H. J. Friedman had knowledge of the same before the commencement of the acts hereinafter complained of, and directed the violation thereof by ordering Hendrix to proceed with said acts.

(3) Hendrix, acting under instructions from Friedman, proceeded with a crew of laborers to cut said ditch along said highway, and between the same and the store, lunch room, and residence of petitioner, and did actually dig said ditch, which is now being maintained at said point by them. Said ditch is totally unnecessary at such point; and, if drainage at said point is necessary, the said highway board, the said Friedman, and Hendrix should place metal culverts along said highway at said point for such drainage, instead of digging an unsightly ditch in front of the store, lunch room, and residence of petitioner, and thereby cutting off travel from said highway from entering the grounds in front of his store, lunch room, and residence, and thus making the same inaccessible to travelers on said highway, and depriving petitioner of their patronage. Said ditch is an irreparable damage to his property.

(4) When petitioner executed the deed to said strip of land over which the western half of said highway is located, Logan, who represented the said highway board in the procurement of said deed, represented to petitioner and made him a solemn promise that the Riceboro station road would intersect with the Coastal Highway at a point immediately in front of his residence on the west side of the highway, and represented to petitioner that said highway, when completed, would be left open to travel from said highway to his store, lunch room, and residence, all the way along said highway and the intervening space and said tract of land so deeded; and petitioner then specifically told Logan that said property would not be given for such purposes, except upon said condition that such highway be left open to travelers; and Logan then faithfully promised petitioner that all of said promises would be carried out.

(5) In addition to digging said ditch, the highway board, Friedman, and Hendrix are threatening to open up an extension of the Riceboro station road, beginning at the foot of the incline of said overpass over the railroad tracks, and to extend the same between the residence, store, and lunch room of petitioner and said Coastal Highway all the way across the strip of land conveyed by him, and entering said Coastal Highway at a point north of said land, and, if this is permitted, irreparable damage will be done to petitioner. Besides, such extension would endanger the lives of his small children and increase the hazard of the traveling public.

(6) At the time of the execution of his deed to said highway right of way, Logan represented to petitioner that the highway board was undertaking to obtain a right of way for said Coastal Highway 100 feet in width; that, if said width could not be procured, then that the highway board would...