Tift County v. Smith, 39569
| Decision Date | 25 October 1962 |
| Docket Number | Nos. 1,2,3,No. 39569,39569,s. 1 |
| Citation | 129 S.E.2d 172,107 Ga.App. 140 |
| Parties | TIFT COUNTY v. J. C. SMITH et al |
| Court | Georgia Court of Appeals |
1. Dougherty County v. Pylant, 104 Ga.App. 468(1), 122 S.E.2d 117.
2. There is no difference in the rights of property owners, and the fact that the plaintiff's property is rural rather than urban nowise affects his right to recover damages where by the construction of a highway the road on which the plaintiff's land abuts is converted into a cul-de-sac.
3. Dougherty County v. Long, 93 Ga.App. 212, 213, 91 S.E.2d 198, 199.
4. The trial court did not err in overruling the general and special demurrers to the plaintiff's petition.
Judgment affirmed.
ON MOTION FOR REHEARING
No reference is made in the defendant's motion for rehearing to any ruling in the majority opinion other than to the first two divisions which deal with the question of the plaintiffs' right to recover under the allegations of their petition because that portion of the road on which their property abutted was converted into a cul de sac.
The defendant seeks to draw a distinction between rural property and urban property when, while the value per front foot may vary, there is no distinction in the rights in the owners of such property. The provisions of the Constitution that the protection of person and property shall be impartial and complete (Art. I, Sec. I, Par. II; Code Ann. § 2-102), and that private property shall not be taken or damaged without just compensation being first paid (Art. I, Sec. III, Par. I; Code Ann. § 2-301), do not allow one rule for urban property owners and another for the owners of rural property.
If the plaintiffs' property has been damaged and depreciated in value, as alleged in the petion (and the measure of damages sought in the petition is the diminution in the market value because of the creation of the cul-de-sac), he is entitled to recover damages under the law as exemplified by the decision in the case of Felton v. State Highway Board, 47 Ga.App. 615, 171 S.E. 198, which authorizes a recovery for property owners between the dead-end and the first intersecting street.
The Supreme Court in the case of Ward v. Georgia Terminal Co., 143 Ga. 80, 82, 84 S.E. 374, recognized that the owners of land abutting a public street are entitled to damages where the portion of the street where the land abuts is converted into a cul de sac. Thus, in that case it was recognized that the the damage suffered by such property owners is different, not in degree but in kind, from that suffered by property owners beyond the first intersecting street. While the defendant places much emphasis on a contention that the 'first block' rule is an arbitrary rule used to determine when the 'cul de sac' rule applies and when the 'police power' principle applies, such is not the case, for after the 'first block' or first intersecting street the property abutting such street does not abut upon a cul de sac. Therefore, while there has been a reference to the 'first block' or first intersection such reference refers, not as to which property owners abutting a cul de sac may recover but which owners of property have land abutting a cul de sac.
The defendant, in its motion for rehearing, refers to the inconvenience of having to travel a circuitous route as one of the alleged items of damage. Such is not the case, for the item of damage is the damage to the property and the measure in most cases would be the difference in market value before and after the cul de sac was created, and while the inconvenience in traveling to and from the property would definitely effect its market value such inconvenience is not the item upon which the damages are based or sought.
The defendant also relies upon another principle to support its position that in the construction of the interstate highway system more and more culs de sac will be created and the burden upon the State, if recovery is permitted in such cases, would be too great. In answer to such contention it need only be said that the rights of parties are not to be determined by the possibility that other suits may be filed against the State, but by a determination of whether the plaintiff is entitled to recover under the case as laid in his petition.
The case of Warren v. Iowa State Highway Commission, 250 Iowa 473, 93 N.W.2d 60, relied upon by the defendant is of course not binding on this court, and while that State may allow a double standard for the rights of its citizens (one for the owners of urban property and another for the owners of rural property), it is no excuse for this State to do the same. Nor is the excuse that rural property owners are not hurt as much as urban property owners sufficient. Assuming, that two tracts of rural property are identical except for their location, one 1 mile from town and the other 20 miles from such town can it be disputed that the tract nearer town is far more valuable. Yet, if by placing the tract nearer town on a cul-de-sac which requires the owner to travel 10 miles away from town to get to a road that leads to town is not such property then less valuable? On the other hand it is easily conceivable that urban property may be more valuable when the street upon which it abuts is turned into a cul-de-sac: e. g., residential property on a thoroughfare could be less desirable than an identical house two blocks away on a cul de sac. On the other hand business property (see the Felton case, supra), would be depreciated considerably if all motor traffic desiring to go to such business property were required to turn around in order to leave it. Each case must stand upon its own facts, and under the allegations of the petition and the established law in Georgia the petition was not subject to the general demurrers attacking the allegations with reference to the cul-de-sac.
Rehearing denied.
While I recognize the importance of highways and highway construction to our economy and the urgency of conserving public funds in this day of spiraling costs, I can not overlook the requirement of our Constitution that 'Protection to person and property * * * be impartial and complete.' Code Ann. § 2-102. The demands of progress do not justify any discriminatory treatment of the citizens. Williams v. City of LaGrange, 213 Ga. 241, 243, 98 S.E.2d 617. It seems to me that we have no alternative to the adoption of a rule that applies impartially to the man who owns property in the city and the one who has property out in the country. A 'first block' or 'first outlet' rule was adopted in Felton v. State Highway Board, 47 Ga.App. 615, 171 S.E. 198, and, as Judge Jordan points out in his dissent, that rule has now been followed in something like a score of our sister states. This would indicate that it has great merit. I should be willing to apply a similar rule in dealing with country property. If it be deemed inimical to the public interest, then we should have in both city and county a more restrictive rule, perhaps one that would allow recovery for this element of damage only by one whose property is being taken. But so long as we adhere to the rule of Felton as applied to city property I think we must stay with the majority here.
As to the facts of this case, it appears that the plaintiff's land on the cul de sac lies within approximately 50 feet of the offending improvement. Thus it is as close or closer than was the damaged property in Felton. There is no factual basis on which the cases can be logically distinguished.
The plaintiffs' petition alleged that their farm property fronting on a public road has been damaged by the construction of Interstate Route 75 in two particulars: (1) by the dead-ending of the public road on which their property was located where it intersected with the interstate road, thereby causing them to have to travel some 2 miles further to reach the nearby settlement of Eldorado to obtain groceries and mail, and (2) by the flooding of their property by rain water falling on the newly constructed road.
I agree with Division 3 of the opinion holding that the allegation of flood damage in this case is good as against the demurrer filed thereto. I dissent from the rulings in Divisions 1 and 2 of the opinion as to the plaintiffs' right to damages for the alleged decrease in property value based on the inconvenience to them resulting from the construction of...
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