51 Ga. App. 930 | Ga. Ct. App. | 1935
J. W. Felton sued the State Highway Board et al., for damage to his property. The jury returned a verdict for the defendants. The plaintiff’s motion for new trial was overruled, and he excepted. The property alleged to have been damaged was located on the corner of Crescent Street (running approximately east and west) and of an alleged street known as Kelsoe Street (running north and south) in'the town of Oglethorpe, Ga. The State highway was originally on Crescent Street, and was relocated a block away to the north on Chatham Street. An overhead bridge was erected over the railroad on Chatham Street, and in building the approach to the bridge Kelsoe Street (a cross-street running from Crescent Street to Chatham Street) was permanently blocked. Kelsoe Street was never a part of the State highway. When the highway was relocated and opened up, traffic could also continue to flow over Crescent Street as a public street of the town of Oglethorpe. The plaintiff alleged that he had been injured and damaged by the State Highway Board and its members in the following ways: (1) By the removal and relocating of the State highway which abutted his property on the south and immediately in front of the hotel located thereon. (2)
When this case was formerly before this court it was held: “Where a street upon which a lot abuts is closed by an obstruction at an intersecting street, which, as respects the lot, makes the street upon which it abuts a cul-de-sac, although the obstruction is neither immediately in front of the lot nor touches the lot, and the obstruction thereby materially diminishes and curtails the right of the owner to the free and uninterrupted use of the street in front of the lot, as a means of access to and from different parts of the city, it constitutes a special damage to the lot, different in kind from that inflicted upon the' community in general, and the owner has a right of action in damages therefor.” 47 Ga. App. 615 (171 S. E. 198). It was said in the opinion that “In the first count of the petition the plaintiff’s damage is alleged in the sum of $4000, the difference between the value of the property, which was $5000 before the erection of the obstruction, and its. value of $1000 after the erection of the obstruction.” Thereafter, when the ease went to trial before a jury, one of the contentions of the defendant was that the right of action was barred by the statute of limitations, for the reason that it was not brought within four years after the right of action had accrued (Code of 1933, § 3-1001). The judge charged the jury: “If you find from the evidence in this case, under the law that I have given you in charge, that the alleged street described in plaintiff’s petition as Kelsoe Street was permanently blocked and obstructed more than four, years prior to March the 5th, 1932, the date when the plaintiff filed his petition, then the plaintiff could not recover in this case. The plaintiff’s right of action or right to sue commenced when what is known as Kelsoe Street was obstructed and blocked in such a way as to make traffic over it. impractical, and the plaintiff would have to bring a suit for damages within four years from such date; otherwise he would be barred under the law. After traffic over
“Under the constitution of the State of Georgia, 'private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid/ Civil Code (1910), § 6388 [Code of 1933, § 2-301], Accordingly, if property is damaged, even by the prudent and proper exercise' of a power conferred by statute, the owner is entitled to just compensation. . . Where the public authorities properly erect and properly maintain the improvements authorized by law, . . the only right of action maintainable is that conferred by the quoted provision of the constitution. It does not sound in tort, and the recovery permitted is strictly limited to the direct damage indicted by diminishing the market value of the property damaged, as measured by the difference in its market value before and immediately after the construction of the public works, excluding all consequential damages subsequently accruing, such as might be recoverable in an action sounding in tort based on the maintenance of a continuing, abatable nuisance.” City Council of Augusta v. Lamar, 37 Ga. App. 418 (140 S. E. 763). In the instant case there was no nuisance. “That which the law authorizes to be done, if done as the law authorizes it to be done, can not be a nuisance.” Burrus v. Columbus, 105 Ga. 42, 46 (31 S. E. 124). If the highway department damaged the property, the right of action maintainable is that conferred by the provision of the constitution quoted above. The highway department did what it had a right under the law to do. But if it damaged the plaintiff, the State Highway Board was bound to make compensation. When this work was done (the building of the embankment that constituted the approach to the bridge that blocked Kelsoe Street), assuming that damage resulted therefrom to the plaintiff and that he had a right of action against the defendant for damages, he could sue not only for the damages which might have accrued prior.to the bringing of the action, but for such as might accrue in the future. The whole damages could have been assessed in one action; such action taking the place of the statutory provision, in cases where property is condemned, that the whole damages may be assessed. Hence there was no reason why the present action should not have been brought
“Owners of land abutting upon neighboring streets, or upon other parts of the same street, at least when beyond the next cross street, are not, however, entitled to damages, notwithstanding the value of their lands may be lessened by its vacation or discontinuance.” 2 Elliott on Koads and Streets, § 1181; Ward v. Georgia Terminal Co., 143 Ga. 80, 82 (84 S. E. 374). In other words, the plaintiff could not recover merely because the opening up of Chat-ham Street diverted the larger portion of the traffic from Crescent Street, when the plaintiff had access to his property over that street. If it had not been necessary to build the road fill which blocked Kelsoe Street, and the highway department had built a straight level road, in no way interfering with the crossing at Kel
Having in mind that the whole damage could be assessed in one action, that which might have accrued prior to the bringing of the action and also such as might accrue in the future, such action taking the place of the statutory provision in cases where property is condemned, we think in this case the jury were authorized to find that when Kelsoe Street was permanently closed, the right of action accrued for any such past and future damage. It is our opinion that the jury were authorized to find, under the evidence, that
Judgment affirmed.