51 Ga. App. 313 | Ga. Ct. App. | 1935
The exception in this case is to the judgment sustaining a general demurrer to a petition brought by J. W. Ham against Heard County, to recover damages arising out of the relocation of a public road.
The petition alleges that said public road “was taken over by the State Highway Board of Georgia and made a part of the State-Aid System of highways;” that “in April, 1933, the State Highway Board of Georgia and the defendant . . relocated, graded, and widened said road,” so that it ran within three feet of the front of his residence, and was “some three and a half feet lower than it was prior to said time,” taking “.31 of an acre of petitioner’s land without paying him . . therefor and without condemning same as provided by law,” and “leaving an embankment some five feet high in front of” his residence; that the relocating of said road in the manner set out “diminished the market value of his said property” in the sum of $500, and that he was damaged in that amount; and that “on August 21, 1933, he made a demand in writing upon the defendant for payment of his damages, which was refused.” The prayer was that “process be directed to the defendant,” etc.
Section 2, provision 5 of the act approved August 18, 1919 (Ga. L. 1919, pp. 242, 249), is as follows: “That when any portion of the designated State-Aid Road System is taken under the jurisdiction of the State Highway Department by written notice as prescribed in Article 5, Section 1, hereof, the county or counties in which said portion is located shall not thereafter be required to levy taxes for the construction or maintenance of said portion, or
We are satisfied that the present aetion was not subject to general demurrer under the act of 1919, supra. But it is insisted that
Said act of 1933 provides that said act of 1919 “shall be amended by striking out in its entirety section six of said act, which reads as follows, to wit: ‘Sec. 6. That the respective county road authorities shall furnish, free, to the State Highway Board all necessary rights of way for the designated roads in each county, constituting any portion of the system of State-aid roads/ and substituting therefor a new section which reads as follows, to wit: ‘Section 6. When a road is approved as a part of the system of highways of Georgia and is under the control and supervision of the State Highway Board of Georgia, the establishment of such road and its construction, including, location, surveys, grading, and paving, shall be in the control and supervision of the State Highway Board. All expenses necessary for such establishment and construction including surveys, the procuring of rights of way, the location or relocation of such roads, and all other expenses connected therewith shall' be paid by the Highway Board out of funds allocated to the Highway Department. It is provided however, that it shall be the duty of county commissioners, or other county authorities having control of county roads, to assist in procuring options for the necessary rights of way as cheaply as they can be procured. But no county funds, including funds arising from the one-cent gas tax now appropriated to the counties by law, shall be appropriated or used in any manner whatsoever for the establishment or construction of State Highways. It is the purpose of this act to prohibit county participation in the cost of the establishment or construction of State roads; provided that it is not the purpose of this act to prohibit any county from contracting with the State Highway Department for the construction of any portion of the State-aid road system now permitted or which may be permitted by law/”
Under section 6 of the act of 1919, the counties were required to “furnish, free, to the State Highway Board all necessary rights of way for the designated roads in each county, constituting any portion of the system of State-aid roads.” By the amendment of 1933, this section was stricken, and the right and duty devolved upon the State Highway Board to establish, locate, survey, grade, and pave
Judgment affirmed.