Woodside v. State Highway Department
115 S.E.2d 560
Ga.
1960
Check Treatment

*1 whether or been properly employed. facts discuss not he had not even whether or We need consider here not he a head of department by city as defined ordinances, since it sufficient only city decision here to see he employee, that paid being by employment inter- city, his has been authority. by city fered with without has trustees Tire alone discharge right pe- him. I would therefore hold that the alleges tition that wit, authorize the relief sought, discharge the order of purporting petitioner the trustees enjoined interfering be held void and that trustees be possession of petitioner’s with his Director of Public office as Libraries; in sustaining and the court erred the demurrer and dismissing petition.

I am Mr. Presiding say authorized Justice Head to he in this concurs dissent.

20909. WOODSIDE et al. STATE HIGHWAY

DEPARTMENT. Argued July 12, 1960 Rehearing 14, June 1960 Decided July July 25, 29, 1960.

denied *3 White, plaintiffs Houston in error.

Eugene Cook, Goode, Attorney-General, Carter Assistant Attorney-General, contra. Justice. petition The set forth

Quillian, appeared the need im immediate determination of portant question to whether and what lateral sup other port legally was bound to furnish for parts upon building standing left lots of the co defendants terminous question The decision of this necessary, according to petition, the averments order highway might construction of proceed without delay. petition alleged undue further an there ac justiciable tual controversy concerning issue duty its *4 support buildings for the adjacent furnish on the defendants’ petition did set forth all property. Hence, of the plaintiff necessary declaratory judgment to to the entitle (Ann.) 10-1101; Brown Lawrence, v. Ga. prayed. Code 204 § (51 City 651); S. Publix-Lucas Theaters v. Bruns 788 E. 2d Harlem, (56 v. 254); Baptist 206 E. Sanders wick, 206 Ga. S. 2d (59 720); Brown County, 7 S. E. 2d v. Cobb 207 Ga. Church, 258 (91 172 E. 2d Hans ell v. Citizens & Southern 516); Ga. S. (98 622).

National 2d of the Bank, 213 Ga. 205 S. E. None petition special as amended meritorious. demurrers to the were that pleas nonjoinder alleged The defendants’ (Ann.) brought the action one under Code 95-1710 was § necessary County Fulton a according that to that statute was for a properly to The suit was party the suit were stricken. (Ann.) brought under declaratory and was Code judgment not neces 95-1710, provision relating a of that statute to hence, § petition. parties inapplicable case made sary was to the damages sought defen The to recover to the cross-action negligent out property arising of the unskillful and dant’s The plaintiff prepared manner which the The cause judge dismissing trial err cross-action. did not de declaratory judgment to petition out in was for a set plaintiff’s incident rights plaintiff certain of the termine through City of acquired by the Atlanta use of eminent domain. cross-action power The exercise arising damages for a action undertook to assert cause of alleged in the cross- plaintiff’s negligence. The cause petition. to forth in the germane that set action not Fishing Pond 206 Ga. Club, Ocean the case of Warwick In pe (58 pronouncement: “The 383), E. 2d 680, 687 S. alleged enjoin trespass an titioner’s of action was cause damages, dividing line. defendant’s claim establish The not entirely matter, in an different upon trespass based Brownlee v. War been disallowed.” germane and should have Ry. Northern Co. v. Atlanta 102); S. E. mack, 90 Ga. 775 210). In connection Code E. this see Harris, S. Ga. 8-106. § court the cross- upon which rules ground sole this trial is that by the court properly dismissed

action was in the the action forth germane to set therein not case made was now ruled objections cross-action are petition. No other defend- passing upon upon. not to be construed This is damages suit. rights in another recover ant’s owed holding not err in The court did support or lateral other duty no to furnish

259 portion building standing on of the the defendant’s property not up taken. The decree entered in proceeding to the condemn right-of-way part the and was a which of the evidence ad- on in duced the vested the trial, as successor to the original right condemnor to the title and to use the condemned a highway right-of-way up lands as of the line property the not taken. in the power Where exercise of of the do- eminent main a highway right-of-way is illogical condemned it would be to assume parcel strip the whole or of land condemned would not used be as a

The consequential damages awarded defendants were compensate them damages for all of parts the property taken, prudent not by preparation caused proper and of a highway. as compensation “The assessment of for land taken railway for a covers all damages, whether fore seen or not, and whether estimated or not, result from proper construction of road.” Gilbert Savannah, Grif & North Railroad, Alabama 396, 399. The of Ga. case fin Talcott of City Bros. v. Des Ia. 113 Moines, 134 W.N. 311) holds: “Within our in reasoning view the Callender v. Marsh, in supra, approved Creal v. Keokuk, to the effect grant that the city, whether by dedication, by condem nation, or right carried with purchase, it the if this injure, need be in abutting reason, property making in im such provements public reasonably necessities travel should require, is unanswerable. in And, indeed, one of no the cases holding liability attempt doctrine there a serious holding made to answer it.” A similar is Hall found v. Dela ware, 669, L. & W. 21 A. Co., R. Pa. 468 A. L. R. 1128). “Everyone knows that land taken is thus but of a general and that the improvement,’ company railroad cannot be 'up expected to hill dale,’ run its tracks and down as it would if on they ground have to do laid surface of were natural regions in this section country, especially hilly plaintiffs’ Lackawanna county, Hence, where land is situated. every land taken property that, owner whose is bound to know adopted or grade if it is above then thereafter rail cut down until company, grade, road it will be it reaches the ground and, if on the line the natural elsewhere surface adopted up is below the the hollow will be filled accord- grade, ingly.” claiming defendant must have been when conse- aware

quential damages right-of-way might probably *6 graded up would cut and their property be down k> line in order general highway to conform with the lines and of contours the to be constructed. support lateral

Hence, property for of of loss not taken consequential damages one of the elements of parties damage that should anticipated by have been —a expected normally purpose from of so result the nature and putting right-of-way for taken. use which it was

Judgment trial judge with direction. The directed affirmed modify judgment dismissing his the cross-action to conform rulings except with the All the concur, this court. Justices of C. P. and who Duckworth, J., Head, J., Hawkins, J., dissent from ruling opinion judg- the third division and from ment of affirmance. dissenting. original peti- plaintiff’s Justice,

Hawkins, rights prayed: par- tion the court of all the “That declare completion with of the ties hereto reference to the demolition lines; building Expressway property on the side of new completion of the for the clearing and the said performance of such laid Expressway; upon, duties rights may in, the exercise of such be declared be vested respect petitioner with to the matters set forth herein.” With- reaching question of out whether cross-action states against Department good Highway of action for the cause public damaging private property purpose, I dissent opinion mat- ruling the 3rd division that the germane to are not plaintiff’s peti- ters therein referred judgment. Spears Scott, and from the affirmance of that tion, (36 Verginadis Milling v. Atlanta 950); Co., 111 Ga. 745 S. E. (1) 800); Indemnity S. Travelers Co. v. 173 Ga. 626 E. 136). E. Callaway, Ga. 684 S. 2d say Chief I am authorized to Mr. Justice Duckworth concur in this Presiding Justice Head dissent. and Mr.