State Highway Board v. Baxter
| Decision Date | 19 September 1928 |
| Docket Number | 6518. |
| Citation | 144 S.E. 796,167 Ga. 124 |
| Parties | STATE HIGHWAY BOARD et al. v. BAXTER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
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.
(a) This easement "includes the right of ingress, egress and regress, a right of way from a locus a quo to the locus ad quem, and from the latter forth to any other spot to which the party may lawfully go, or back to the locus a quo."
(b) Where a highway is laid out, and an overpass over a railroad is constructed with approaches, the owner of abutting land has a right of access to such approaches.
(c) Such owner, however, is not entitled, as against the public to access to his land at all points in the boundary between it and the highway, if entire access has not been cut off and if he is offered a convenient access to his property and to improvements thereon, and his means of ingress and egress are not substantially interfered with by the public.
(d) If necessary to enable him to reach the traveled part of the road, he has the right to bridge a ditch, or construct a grade for that purpose; but in so doing he has no right to wilfully obstruct such ditch or highway, his rights as a private landowner being subordinate to the public right of construction and maintaining the highway in repair.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Easement of Access.]
This easement of access is a property right, of which the landowner cannot be deprived, upon the ground that the safety of the public traveling upon the highway may be endangered by the exercise of this easement by the abutting landowner, without just and adequate compensation being first paid to the owner. Under its power and discretion in the location, construction, and maintenance of state-aid roads, the state highway board cannot deprive the owners of land abutting thereon of their easement of access, without first paying to such owners just and adequate compensation therefor.
In the deed from the plaintiff and his mother to the state highway board, they grant to said board the right to do all necessary drainage in the construction and maintenance of this highway, both over the right of way so granted and over the lands of the grantors adjacent thereto. Under this grant the state highway board is not authorized to do unnecessary drainage in the construction and maintenance of this highway.
Under the evidence it was a question of fact whether the exercise by the plaintiff of his right of ingress and egress to his residence would unreasonably endanger the public safety, and under the evidence the trial judge was authorized to find that the apprehended danger did not so endanger the public safety; but, even if a finding to the contrary was demanded by the evidence, and even if the public safety demanded that the plaintiff should be denied his easement of access to his hotel, he could not be deprived of this right without just and adequate compensation.
Under conflicting evidence, we cannot hold, as a matter of law, that the trial judge erred in granting an interlocutory injunction restraining the defendants from maintaining upon its right of way a ditch which deprived the plaintiff of his easement of access to his residence and hotel.
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.
Injunction restraining state highway board from maintaining ditch depriving abutting landowner of access to property held not error as matter of law under conflicting evidence.
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 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 had passed an order restraining the digging of said ditch, and tendered to Hendrix the original restraining order so passed, which he refused to...
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