This is a diversity suit in which the plaintiff seeks to recover damages to her property, claimed to have been occasioned by the construction of. the “East Rome Interchange Project”, a state highway facility to which it is adjacent. None of her property was taken for the project. However, certain grade and traffic changes were made to public streets and highways bordering the property which it is contended caused the damages claimed. As originally constituted, the suit sought recovery for:
(1) Loss of public access, temporary and permanent.
(2) Change of grade.
(3) Loss of parking, both on-premises and off-premises.
(4) Physical damagе from the construction both temporary and permanent.
(5) Noise, fumes and lights as continuing damage.
Heretofore, the court on motion has considered some of the legal problems involved in such claims when the property owner does not occupy the status of a condemnee under eminent domain proceedings. However, inasmuch as evidence has now been taken, and a trial by view had by the court, the entire problem must be reconsidered in light of the facts.
FINDINGS OF FACT
The facts are best understood by reference to the appended Exhibit “A”, which reprеsents the situation before the project and Exhibit “B” which represents the situation after completion of the project.
In 1959, plaintiff entered into a contract to purchase the property in question from Lucia McKay for $90,000 and to that end, the parties made substantial repairs on its two buildings; one being the 14-unit Eastwood Apartment House and the other being a 900 square foot
The property is triangular in shape and is located in the northwest corner of the intersection of Brooks Avenue
On July 28, 1965, work began on the project, of which this intersection is a part, which primarily involved the extension of the four-laned Brooks Avenue to the south to an interchange of major highways and the construction of access ramps to the interchange. All construction, including paving was completed by September 20, 1966, and the project accеpted in December, 1966. Local traffic was maintained for all but a few days, but the project occasioned the usual annoyances of dust, mud, noise and temporary loss of access attendant to any such undertaking.
Insofar as physical changes are concerned, Ramp “B” was constructed leading from Brooks Avenue westerly into East 2nd Avenue and Ramp “A” was constructed leading from East 2nd Avenue southerly to the interchange. In addition, Brooks Avenue was widened and paved from its former terminus southerly to the interchange. At the time, the plaintiff sought to have Ramp “B” constructed with a valley curb, which would continue to admit vehicular traffic all along her western line into the property. Nonetheless, it was constructed with a 4" mountable, i. e. rounded, curb, which effectively discourages such practice. The right-of-way between the old street and sidewalk has been reduced to 12 feet. While cars continued to use the old areas devoted to parking, both on and off the property, they do so only by “bumping up” the curb or by entry at the existing driveway at the northwest end of the property and traveling down the old sidewalk and unpaved right-of-way. Parking insofar as Brooks Avenue and the parking area on the north side of the property are concerned is virtually unaffected. Ramp “B” is elevated above Brooks Avenue in a westerly direction into East 2nd Avenue. Ramp “A” is elevated even higher than Ramp “B” and was constructed over a large fill toward the south.
Traffic patterns have been materially changed. The only access to the property remaining is from Brooks Avenue on the east; from Brooks Avenuе traveling south into Ramp “B” on East 2nd Avenue; and from travel north on Ramp “A” into East 2nd Avenue. Any reasonable access from 10th Street, 11th Street, or 2nd Avenue from the east and west, except from the two ramps has been denied by the construction of curbed dividers.
The Constitution of the State of Georgia provides in relevant part: “Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid. * * *” The parties here concede that the injuries complained of do not involve a taking of property but involve only a damaging of property. A threshold question which requires consideration is the scope of the term “damaged,” i. e., does any diminution of private property occasioned by governmental action constitute a damaging within the meaning of this constitutional provision? At the outset it should be noted that mere depreciation in value as damages has been rejected in most jurisdictions as too broad and these jurisdictions have required that the injuries complained of must fall within some narrower definition of “damage.” 2 Nichols on Eminent Domain, § 6.441 [11 at 488 (3rd Ed. 1963). For a discussion of the reasons for rejecting such a rule, see Nichols, supra at 491. See, e. g., Austin v. Augusta Terminal Ry. Co.,
[C]ompensation is required not only when there is an injury that would be actionable at common law, but also in all cases in which it appears that there has been some physical disturbance of a right, either public or private, which the owner of a' parcel of land enjoys in connection with his property and which gives it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.
Nichols, supra at 495-496. A similar view has been taken by the Georgia courts. See, e. g., Pause v. City of Atlanta,
(1) The first element to be considered is the claim of a material interference with access to plaintiff’s properties. The crucial inquiry here is whether the Georgia cases have required a complete or near complete deprivation of access to one’s property or whether damages are recoverable when access is blocked from only one or more directions. The general rule as to access is stated in 2 Nichols on Eminent Domain, § 6.442.
* * * when the means of ingress and egress of premises abutting upon a public street to and from the street are physically obstructed by the manner in which the street is used, altered, or improved under legislative authority * * * the owner of such premises is entitled to compensation so far as such impairment of access depreciates the market value of his property, [citing Georgia cases].
For another general statement of the rule, see 29A, C.J.S. Eminent Domain § 122 at p. 483-485. In Clayton County v. Billups Eastern Petroleum Co.,
(2) The element of change of grade is closley connected to previously discussed element, for ordinarily a change in grade will give rise to a claim of deprivation of access. See, City of Atlanta v. Dinkins,
(3) Over and above any element of loss of access or change of grade, the plaintiff here seeks to recover damages for loss of parking spaces as such. For such claim, the plaintiff relies on State Highway Dept. v. Alexander,
(4) The allegations as to physical injury caused by mud and vibrations present rather difficult problems. It is generally held that a definitе, physical injury cognizable to the senses which has a perceptable effect on present market value, constitutes a damage in the legal sense. 2 Nichols, supra at § 6.4431. Georgia recognizes the general rule that damages for depreciation of property resulting from physical damage to property are recoverable. Richmond County v. Williams,
And not only must plaintiff show that the condition was permanent but also that the new condition was the necessary concomitant of the road design. Hollywood Baptist Church of Rome v. State Highway Dept.,
(5) Plaintiff also argues that the noise, fumes and light beams from passing traffic constitute another of the elemеnts of compensable damage. Apparently, there would be no question as to the permanent nature of these elements. However, there are serious questions as to whether these elements are compensa-ble. To the extent that these elements could be classed as instances of mere inconvenience or instances suffered by the public in general along the project, then no compensation would be allowed. But beyond this, can these elements be considered as compensаble? The Georgia cases dealing with these elements are
A case involving condemnation or inverse condemnation is distinguishable in legal theory from a tort action, where the doctrine of governmental immunity provides a sometimes insurmountable barrier. But the courts in dealing with inverse condemnation have relied heavily upon tort doctrines, especially the nuisance doctrine. See Mandelker, A Review of Inverse Condemnation, ABA Law Notes: October, 1966, wherein this theoretical background is more fully discussed. See 29A C.J.S. Eminent Domain § 110 at p. 450. As indicated before, the Georgia cases are not clear on the compensability of elements such as noise, fumes and light beams. At least the claimant would have to show injury that was distinguishable from the public in general along the project. Moreover, the Court would expect that the proof should show that these elements were so severe as to amount to a legal nuisance, rather than a mere nuisance in fact. The damages must be distinguished as special when compared with the damage suffered by the public generally along the project. For example, it would be an impossible burden on the various governmental entities connected with development of highways if every landowner who could hear passing traffic could recover damages. True, the noise from passing traffic makes property less desirable for a number of reasons. But highway construction would be virtually impossible if such recovery were allowed in every case. See Richmond County v. Williams,
(6) One of the most difficult questions in this case is the proper measure of damages in the event of a recovery. It is strongly suggested by plaintiff, and this is relevant to a number of the claims asserted, that the proper measure of damages should include the damage to plaintiff’s businesses of an apartment house and laundromat. In taking this position plaintiff relies upon Bowers v. Fulton County,
The term [property] comprehends not only the thing possessed, but also, in strict legal parlance, means the right of the owner in relation to land or a thing; the right of a person to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from the use.
Plaintiff argues that the Bowers holding was not based upon the status of thе complaining party, i. e„ a condemnee, as is argued by defendant, but was based upon the nature of the term “property” found in the constitutional provision. Plaintiff also relies upon the overruling of a portion of Pause, supra. Pause, which involved a non-condemnee, had held in part that “* * * the profits of the business are not recoverable by way of damages, but evidence that the business was profitable is admissible to illustrate and throw light upon the value of the premises for rent.”
* * no disagreement concerning the conclusion that a condemnee is under the constitutional provision entitled to just compensation for every species of property taken or damaged, real or personal, corporeal or incorporeal.
Id. at 737,
In Bowers the elements of compensa-ble damage included loss of business, loss of profits, expenses of moving [the] business, and so on. There the entire holding of the condemnee was involved.
Id. at 99,
DAMAGES
In light of the above it is apparent that the only legally sustainable claims for damage lie in two areas: for (1) loss of access and (2) change of grade, really the same type of loss in this case and for (4) physical damage and (5) noise, fumes and light, the nuisance-type claims. As seen, the measure of damages for the former is restricted to any loss in market value caused by such change. The latter being linked to consequential damages, the measure of damages for it is likewise restricted to any permanent loss in market value
Overall the plaintiff apparently made a “bad buy”. Prior to the project, the apartment was worth, at best, $67,100 and, after the project, $53,700 according to plaintiff’s own appraiser. The same witness fixed the before value of the “Scotch Wash” at $9,000, based on $1.25 per square foot rental and capitalized at 12%, and only $500 afterwards. The maximum evidence of loss due to all factors is $22,300. Moreover, only one-third of this loss was allocated to access-ability and nuisance from noise, lights, etc. and two-thirds to the loss of off-property parking spaces (already held not to be recoverable). Other evidence in the casе fixed the loss at Zero.
Whatever loss was suffered over the years in question, the court is convinced that other factors besides the project contributed. These would be a general deterioration in the neighborhood, the availability of newer and more desirable rental facilities, both apartment and commercial, the effect of shopping center development and the like.
Nonetheless, the plaintiff has proved a case of substantial loss of access which has reduced the market value of her property. The court finds no loss from change of grade except as it affects this loss of access. There is no proof of physical damage from the nuisance factors,
Specifically, then, the court finds the following types of damages to have occurred :
(1) Loss of access, temporary and permanent $5,500.00
(2) Change of grade NONE
(3) Loss of parking NONE
(4) Physical damage, temporary and permanent NONE
(5) Permanent nuisance damage 1,000.00
TOTAL $6,500.00
Accordingly, judgment may issue in favor of the plaintiff for such amount.
It is so ordered.
Notes
. Subsequently renamed Turner-McCall Boulevard.
. This discussion leads into the limitations involved in the cul-de-sac principle. The most comprehensive discussion of the principle is found in Tift County v. Smith,
There are other well recognized exceptions to the generalization made in the text. For example, the Georgia Courts have held that the access of an abutting owner as to a particular direсtion must be substantially impaired, i. e., curbing does not block off reasonable access if access is permitted at various intervals in the curbing. See, e. g., State Highway Board v. Baxter,
. On this item, the plaintiff’s evidence was extremely vague. As to the apartment, she claims a decrease in occupancy and a greater rate of turnover. At some periods since the project, occupancy has dropped as low as 60%. One witness felt it “ought to be” 85-100%. However, cross-examination revealed that there has been an occupancy problem since 1963. On the facts, the court is inclined to the view that the occupancy problem is affected only slightly by the project. As to the “Scotch Wash”, its business deteriorated from an apparent high gross of some $9,000 in 1960 down to less than $3,600 in 1964, a year before the project commenced. At this time, the expenses exceeded the receipts and the operation was actually losing prior to the project. On the facts, there was no loss of business in the “Scotch Wash” due to the project.
. As seen such a claim is legally permissible. However, the only specifics of damage offered were a claim of shrubbery lost, later shown to have been due to a freeze in early 1963, and a vague claim of dust damage. However, there was no proof of dollar loss as to the latter.