Davis v. City of Barnesville

54 S.E.2d 915 | Ga. Ct. App. | 1949

1. Section 95-1710 of the Code of 1933 provides the only method and procedure by which the State Highway Department of Georgia may become liable and be sued in tort. State Highway Department v. Parker, 75 Ga. App. 237 (1) (43 S.E.2d 172). Where the plaintiff filed a petition for damages against the City of Barnesville and the State Highway Department jointly for the improper construction of sidewalks on a public street and State highway within the City of Barnesville, which construction allegedly resulted in the ponding of water on the plaintiff's land to his damage, such petition was generally demurrable as to the State Highway Department, since it did not follow the procedure provided for in the Code, § 95-1710 (Page v. Washington County, 48 Ga. App. 791, 173 S.E. 868; Felton Farm Co. v. Macon County, 49 Ga. App. 239, 175 S.E. 29; Tounsel v. State Highway Department, 180 Ga. 112, 178 S.E. 285; Taylor v. Richmond County, 185 Ga. 610, 196 S.E. 37; Hardin v. State Highway Board, 185 Ga. 614, 196 S.E. 40; State Highway Board v. Perkerson, 185 Ga. 617, 196 S.E. 42); and the judge of the superior court did not err in sustaining the general demurrer of the State Highway Department.

2. An action cannot be maintained against a city for damage to private property resulting from the creation or improvement of a State highway through the municipality by the State Highway Department, upon the theory that the city was the principal in the acts of the State Highway Department, in damaging such private property without first paying proper compensation since the principal in such acts was the State Highway Department (Perkerson v. Greenville, 51 Ga. App. 240 (3), 180 S.E. 22), and the trial judge did not err in sustaining the general demurrer of the City of Barnesville.

Judgment affirmed. Sutton, C. J., and Felton, J.,concur.

DECIDED SEPTEMBER 10, 1949.