State Highway Dept. of Ga. v. McClain, 20766

• Decision Date: 12 April 1960
• Docket Number: No. 20766,20766
• Citation: 216 Ga. 1,114 S.E.2d 125
• Parties: STATE HIGHWAY DEPARTMENT OF GEORGIA v. L. S. McCLAIN et al.
• Court: Georgia Supreme Court

Page 125

114 S.E.2d 125

216 Ga. 1

STATE HIGHWAY DEPARTMENT OF GEORGIA v. L. S. McCLAIN et al.

No. 20766.

Supreme Court of Georgia.

April 12, 1960.

Rehearing Denied April 27, 1960.

Eugene Cook, Atty. Gen., Paul S. Miller, E. J. Summerour, Carter Goode, Asst. Attys. Gen., Donald E. Payton, Atlanta, for plaintiff in error.

J. Neely Peacock, Jr., Leonard Farkas, Farkas, Landau & Davis, Albany, for defendant in error. Syllabus Opinion by the Court

CANDLER, Justice.

L. S. McClain, Mrs. Betty Watson Free, and Mrs. Martha Oakes filed separate suits for damages in the City Court mof Albany against Dougherty County, and, in compliance with the provisions of Code § 95-1710, the State Highway Department of Georgia was duly served with a second original and was thus notified of the pendency of such three suit. Their petitions are substantially alike, except as to the amount of damages each sued for, and so far as need be stated allege: They own and reside on separate parcels of land which abut and front on Nona Street, a street Dougherty County established and maintains. By deeds made directly to the State Highway Department as grantee, Dougherty County acquired a right of way from the owner or owners of land located just south of their respective properties for a State-aid road, which is a connecting link between U. S. Highways 82 and 19. While such connecting link is not adjoining their properties, it does, however, intersect and cross Nona Street at a point near their homes, and where it crosses Nona Street a fill has been made, which is 17 feet higher than the level of such street and 60 feet wide and which completely obstructs it, and such fill was completed during the latter part of May, 1958. Such fill destroyed their only means of ingress and egress to and from U. S. Highways 82 and 19. Within twelve months immediately subsequent to the completion of such fill and their consequent loss of such ingress and egress, each petitioner, in compliance with the requirement of Code § 23-1602, presented to Dougherty County his or her respective claim for the damages which he or she sustained through such loss of ingress and egress to their respective homes. The two mentioned highways and the one connecting them which intersect and cross Nona Street are all State-aid roads over which the State Highway Department has assumed exclusive jurisdiction. Each petition contains a prayer for a money judgment against Dougherty County for the alleged diminished value of his or her respective property. After the institution of these three suits and after Dougherty County and the State Highway Department were duly served, the latter filed a proceeding for declaratory relief in the Superior Court of Dougherty County. Its petition names Dougherty County and the three plaintiffs in the above mentioned pending suits as the defendants thereto, and prays for process, service, and a declaration of its rights, status, and liability respecting such suits and its obligation to defend them in the name of Dougherty County, and its liability for the payment of any judgment or judgments which might be obtained in such pending suits. Its petition also alleges that the connecting link and a relocated portion of U. S. Highway No. 19 is a State-aid road or a portion of Georgia's State-aid road system, the construction of which had been contracted by the State Highway Department as one project to a named construction compant; that such project has not been completed by the contractor and opened to traffic by the State Highway Board, and that the plaintiffs' suits were therefore prematurely brought since Code § 95-1712 declares: 'The State Highway Department shall not be liable under existing laws for damages accruing on such additional State-aid roads taken into the system under this law, until construction thereon has been begun under the direction of the State Highway Board and such additional State-aid roads opened to traffic by the said Board.' It is further alleged that the plaintiffs in the three damage suits against Dougherty County should be restrained and enjoined from prosecuting their suits until its rights, status, and obligations respecting them can be determined and adjudicated in this proceeding, and there is a prayer for such relief. The defendants McClain, Mrs. Free, and Mrs. Oakes by a joint answer to the petition for declaratory relief averred that the fill across Nona Street which deprived them of ingress and egress, and in consequence thereof depreciated the value of their respective properties in the amount sued for by each, was completed on June 1, 1958, and that construction of the project has since that date been completely abandoned by the contractor. It is also averred by these three individual defendants that Code § 95-1712 offends article 1, section 3, paragraph 1 of Georgia's Constitution of 1945 (Code, Ann. § 2-301), which declares in part that 'Private property shall not be taken, or damaged for public purposes, without just and adequate compensation being first paid'; and that it also offends article 1, section 1, paragraph 3 of the same Constitution (Code, Ann. § 2-103), which declares that, 'No person shall be deprived of life, liberty, or property, except by due process of law' since it deprives the owner of his right to sue for damages for a wrongful act which, because of its consequences, injures his property and as soon as such an act is completed. The defendant Dougherty County by its answer averred that since the highway involved is a State-aid road over which the State Highway Department has assumed exclusive jurisdiction, it is only primarily liable for any damage resulting from the construction thereof; and that the State Highway Department, under the provisions of Code § 95-1710, is ultimately liable for any damage resulting from such construction. The record in this case conclusively shows that the highway involved in this litigation is a State-aid road which the State Highway Department is constructing in Dougherty County, a road over which it has assumed exclusive jurisdiction; that such road has not been completed and opened to traffic by the State Highway Board; and that the pleadings make no issues of fact for determination by a jury but raise only questions of law. On the hearing, at which neither party introduced any evidence, the trial judge dissolved the order which restrained the three plaintiffs from prosecuting their suits for damages against Dougherty County, sustained the constitutional attacks on Code § 95-1712, declared that such damage suits had not been prematurely brought, and authorized the plaintiffs to proceed with them; and held that it was the duty of the State Highway Department to defend them and pay any damages which the jury might award in the cases or any of them against Dougherty County. The State Highway Department excepted to that judgment and by direct bill of exceptions brought the case to this Court for review. Held:

1. As shown by our statement of the case, McClain, Mrs. Free and Mrs. Oakes by their separate suits against Dougherty County did not claim that their property, or any part of it, had been taken or physically damaged for a public purpose, but their suits were based entirely on the proposition that the value of their respective properties had been depreciated solely because of the loss of access thereto from designated highways in consequence of the construction of a State-aid road not adjoining to their lands but over which the State Highway Department had assumed exclusive jurisdiction. In these circumstances it cannot be held that Code § 95-1712 offends that part of article 1, section 3, paragraph 1 of Georgia's Constitution of 1945 (Code, Ann. § 2-301), which provides that 'Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.' Before this provision of the Constitution becomes applicable, the owner's property must be taken or physically damaged for a public use. Moore v. City of Atlanta, 70 Ga. 611(1); Campbell v. Metropolitan Street R. Co., 82 Ga. 325, 9 S.E. 1078; Austin v. Augusta Terminal R. Co., 108 Ga. 671, 34 S.E. 852, 47 L.R.A. 755; Brown v. Atlanta Railway Co., 113 Ga. 462(4), 476, 39 S.E. 71; Brown v. City of Atlanta, 167 Ga. 416, 420, 145 S.E. 855. The record in this case conclusively shows that no property belonging to the plaintiffs in the pending damage suits had been taken or physically damaged. However, nothing here ruled should be construed as a holding that the plaintiffs' petitions as filed in the City Court of Albany state a cause of action for the relief sought thereby as that question is not before us for decision.

2. As applied to the facts of this case, Code § 95-1712 does not offend article 1, section 1, paragraph 3 of the Constitution of 1945 (Code, Ann. § 2-103), which provides that 'No person shall be deprived of life, liberty, or property, except by due process of law.' It is, of course, well settled that a county in virtue of being a subdivision of the State is not liable to suit for any cause of action unless made so by statute or by necessary implication from some provision of the Constitution. Code § 23-1502; Smith v. Floyd County, 85 Ga. 420, 11 S.E. 850; Taylor v. Richmond County, 185 Ga. 610, 612, 196 S.E. 37; Waters v. Dekalb County, 208 Ga. 741, 69 S.E.2d 274. For similar reason, the State Highway Department is not so liable unless likewise made so. Tounsel v. State Highway Department, 180 Ga. 112, 178 S.E. 285. Code § 95-1710 in part provides: 'The State Highway Department shall defend all suits and be responsible for all damages awarded in any court of this State against any county under existing laws, whenever the cause of action originates on highways, jurisdiction over which shall have been assumed by said Highway Department under the terms of this law. When any suit against a county is brought in any court of this State it...