State Highway Dept. v. Lumpkin, 23730

• Decision Date: 10 November 1966
• Docket Number: No. 23730,23730
• Citation: 222 Ga. 727,152 S.E.2d 557
• Parties: STATE HIGHWAY DEPARTMENT v. Mrs. Quinton LUMPKIN.
• Court: Georgia Supreme Court

Page 557

152 S.E.2d 557

222 Ga. 727

STATE HIGHWAY DEPARTMENT v. Mrs. Quinton LUMPKIN.

No. 23730.

Supreme Court of Georgia.

Nov. 10, 1966.

Rehearing Denied Nov. 23, 1966.

Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Horace E. Campbell, Jr., Deputy Asst. Atty. Gen., Atlanta, Edwin Fortson, Athens, J. Patrick Ward, Atlanta, for plaintiff in error.

Erwin, Birchmore & Epting, Eugene A. Epting, Athens, for defendant in error.

Harold Sheats, Paul H. Anderson, Atlanta, for party at interest not party to record.

Syllabus Opinion by the Court

QUILLIAN, Justice.

This case arose upon the condemnation by the Highway Department of the right of way for the purpose of constructing a limited access highway through the lands of Mrs. Lumpkin. This divided her lands into two separate parcels situated on opposite sides of the proposed highway. The Highway Department in its declaration of taking of the condemnee's land declared: 'The title, estate, or interest in the above described lands, required by condemnor and now taken by condemnor for public use is as follows-Fee simple title to the above described lands and all rights of access between the limited access highway and approaches thereto on the above numbered highway and all remaining real property of the condemnee as shown on (an attached plat).' In its petition the Highway Department sought to condemn '12.304 acres of land and access rights in the land abutting' and alleged: 'Petitioner also seeks to acquire by condemnation any and all right of access in, to, and upon the right of way herein described except as permitted or allowed by the State Highway Department of Georgia, as authorized by Georgia Laws 1955, pp. 559 et seq.; Petitioner stands ready to pay just and adequate compensation for said right of way, easements, and acces rights as described in the declaration of taking attached hereto as (an exhibit).' The trial judge charged the jury, 'it is you duty in this case to award to the condemnee fair and adequate compensation for the three tracts of land taken and for the easements of access taken on May 3, 1963, as disclosed by the evidence,' and later granted the condemnor's motion for new trial on the ground that the evidence adduced upon the trial did not authorize the charge. The Court of Appeals reversed and, in substance, held that the condemnor was bound by the averments of the petition that the access rights were condemned, that the burden was upon the condemnor to prove the case as laid in its petition and that if no evidence was submitted concerning the issue the condemnor could not complain. Lumpkin v. State Hwy. Dept., 114 Ga.App. 145, 150 S.E.2d 266. Held:

The rule is established that in condemnation proceedings the burden of proof rests on the condemnor to prove just and adequate compensation. Georgia Power Co. v. Brooks, 207 Ga. 406, 411(4), 62 S.E.2d 183; Georgia Power Co. v. McCrea, 46 Ga.App. 279(2), 167 S.E. 542. There is no question that a pleader is bound by the allegations of his own pleadings and what he alleges in his pleadings to be true is evidence that he is not even permitted to deny. Code, § 38-402; Armour v. Lunsford, 192 Ga. 598(2), 15 S.E.2d 886; Holton v. Mercer, 195 Ga. 47, 50, 23 S.E.2d 166. However, in the present case there was evidence to support the averments concerning the condemnation of access rights and from which the just amount of compensation could be legally calculated. The testimony given by the condemnor's engineer was that the proposed limited access highway would extend the entire length of the condemnee's property, dividing the same into two separate parcels, and the condemnee would not have the privilege, when the road was constructed, of going upon or across the same from one parcel of her land to the other. The appraiser, who testified upon the trial, gave to the jury all of the pertinent facts necessary in arriving at the value of the lands and the damage done through depriving her of the right to go upon or across the proposed road. Counsel for the condemnor protest that, since under the statute there is no right of access upon a limited access highway, such right could not be condemned. They cite the statute which provides: 'A limited-access highway is a highway, road or street for through traffic and over, from or to which owners or occupants of abutting land, or other persons, have no right or easement or only a limited right or...