Opinion
34104.
DECIDED JULY 11, 1952.
Action for damages; from Fulton Superior Court-Judge Hendrix. April 3, 1952.
O. J. Coogler Jr., Northcutt Edwards, for plaintiff in error.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin, Henry L. Bowden, contra.
Where, by a judgment at one term the court establishes as the law of the case that a petition states a cause of action by overruling a general demurrer thereto to which no exception is taken, it is error for the court at a subsequent term to sustain a general demurrer to the same petition which has been amended only by an immaterial amendment, even though no objection was made to the allowance of the latter demurrer.
DECIDED JULY 11, 1952.
On June 20, 1951, Mrs. Emma Trimble Allen filed suit against the City of Atlanta, alleging damage to her property.
On August 10, 1951, the defendant filed its general and special demurrers. The trial court reserved decision on the general demurrer after sustaining certain of the special demurrers and allowing the plaintiff a specified time within which to amend.
On October 25, 1951, the plaintiff amended her petition, and on November 1, 1951, the defendant filed its renewed and additional demurrers; the general demurrer, upon which the trial court had reserved decision, was directed to the original petition and to the petition as amended.
On December 18, 1951, the trial court overruled the general demurrers, overruled certain of the special demurrers, and sustained certain of the special demurrers.
On December 28, 1951, the defendant filed exceptions pendente lite to the overruling of its general and special demurrers, but did not bring the ruling to this court for review, by cross-bill or otherwise.
On January 4, 1952, the plaintiff again amended her petition; and on January 9, 1952, the defendant renewed its general demurrers to the petition and to the petition as thus amended; and on January 30, 1952, the trial court overruled the demurrers on each and every ground. No exception was taken to this ruling.
As of January 30, 1952, the material allegations of the petition as then amended were substantially as follows: (2) The plaintiff is the owner of certain described property (describing the property in detail). (3) The plaintiff has resided, together with her family on the described land for 44 years. (4, 5) A plat, showing the land lots on which the property of the plaintiff is located and the roads in the lots, was attached to and made a part of the petition. (6) The road running north and south along the dividing line between land lots 40 and 41, as shown on the plat, and continuing north in the same direction for a part of the distance between land lots 24 and 25, and continuing northwesterly and northerly approximately parallel to the east line of land lot 25, and continuing westerly across Harrison Road is Washington Road, the road closed by the defendant. (8) The plaintiff's residence faces west on Washington Road near the northwest corner of land lot 41. (9) Throughout the period of 44 years that the plaintiff has resided on Washington Road, which is an extension of Washington Street in College Park, Washington Road has extended in a northerly and southerly direction along the west side of the plaintiff's land and the plaintiff's residence has fronted thereon. Paragraph 10 was stricken by amendment. (11) Prior to the acts of the defendant in closing Washington Road, that road was the shortest paved road leading from the plaintiff's property to College Park. The distance from the plaintiff's residence to College Park by way of Washington Road was 1200 feet shorter than the distance between the two points by way of Harrison Road and a newly opened road described in paragraph 13. (12) Prior to the closing of Washington Road, the plaintiff's land and residence and the various roads in the vicinity were located with respect to each other as shown on the plat attached to the petition. (13) On or about March 1, 1951, a dirt road was cut leading from Harrison Road to Washington Road at a point opposite the northwest corner of the plaintiff's land. The plaintiff does not know who cut this new dirt road and does not know what connection, if any, the defendant had therewith except as alleged in paragraph 15. (14) The dirt road extends from the corner formed by the intersection of land lots 24, 25, 40, and 41, due west to Harrison Road. (15) The defendant, City of Atlanta, gave the land on which the road was constructed. (16) The dirt road is unpaved and during rainy seasons or in the winter time following freezes when the ground is thawing the mud in this road is so deep that neither an automobile nor a truck can pass over it. (17) With the exception of this dirt road, there is not and has not been any intersecting road or highway leading to Washington Road from any point west between the Harrison Road crossing and the Flat Rock Road as shown on the plat. (18) The defendant is now and has been engaged in the construction of new runways leading southerly from the Atlanta Municipal Airport. (19) Before closing Washington Road, the defendant had acquired for airport purposes all land on both sides of Washington Road from the intersection of land lots 24 and 25, 40 and 45 on the south to the point where Washington Road crosses the north line of land lot 25. (20) One of the runways now under construction crosses the portion of Washington Road between the plaintiff's property and the City of College Park. (21) Heretofore, on or about March 7, 1951, the defendant closed Washington Road at two points in Clayton County between the plaintiff's property and the City of College Park. (22) The closing of Washington Road was effected by placing heavy upright poles in the surface of the said highway. (23) One point at which these poles were placed is within 12 feet north of the northwest corner of the plaintiff's land. (24) The closing of the said highway has cut the plaintiff off from the shortest route to College Park which is the nearest city and trade center. (25) During inclement weather the only access from the plaintiff's property to any other place north or west of the plaintiff's home is Flat Rock Road or Sullivan Road which are longer routes whereas the plaintiff formerly had a shorter route over the paved road which has been closed by the defendant; the distance between the plaintiff's home and College Park has been lengthened by 1200 feet by the closing of Washington Road. (26) During the time of the events related herein Clayton County had a commission form of government in charge of one commissioner as the commissioner of roads and revenues of that county. (27) No order of the Commissioner of Clayton County was taken authorizing the discontinuance of the section of Washington Road which was closed. (38) No application was filed for the alteration of Washington Road before it was closed, as required by Code § 95-201. (29) No warrant whatever was ever issued for the summoning of a jury to assess damages for the altering of Washington Road prior to closing it, as provided by Code § 95-208. (30) The plaintiff never gave her consent to the closing of Washington Road and she has never been paid any compensation therefore. (31) Prior to the closing of Washington Road the plaintiff's residence and property was located on a paved road about ten miles from Atlanta with access by paved road to the metropolitan area shorter than by the paved roads which remain since Washington Road was closed. The distance from the plaintiff's home to College Park by Washington Road is 1200 feet shorter than the distance between the two points by Harrison Road and the new dirt road; and the closing of Washington Road changed the portion of Washington Road on which the plaintiff's residence is located from a frequently traveled highway into a road which bears little traffic, isolated the plaintiff's home and rendered it lonely. The right to use Washington Road as a road to Atlanta and College Park was a right appurtenant to the plaintiff's land and a property right injuriously affected by the closing of Washington Road. (32) Prior to the closing of Washington Road the plaintiff's land was valuable for a subdivision of residence or business lots. (33) The plaintiff's land is located at the southeast corner of Washington Road and the original north line of land lot 41 of the 13th land district and there is no intervening space between the plaintiff's property and the upright poles placed in Washington Road by the defendant that may be used for any purpose. By reason of the facts alleged in the petition the plaintiff's residence and land is materially affected and reduced in value by factors which differ materially from those affecting any other land in the community. (34) Prior to the closing of Washington Road, the plaintiff's property had a market value of $37,500. After the closing of that road and as a result thereof the market value of the plaintiff's property does not exceed $27,500, which difference in market value is the direct result of the closing of Washington Road. (35) Because of the facts related in the petition the plaintiff has sustained loss and damage of a character different from that suffered by the general community. (36) The area where the said highway was closed is not and was not at the time of its closing within the city limits of Atlanta. (37) The closing of the said highway was without legal authority and, therefore, was and is unlawful. (38) On April 24, 1951, the plaintiff presented in writing to the Mayor and General Council as the governing authority of the City of Atlanta a claim for adjustment stating the time, place, and extent of such injury, and as nearly as practicable, the cause of same. A copy of such claim was attached to and made a part of the petition. (39) More than 30 days has expired since the presentation of said claim during which time the defendant has failed and refused to pay the claim or any portion thereof. (40) By reason of the facts stated in the petition the plaintiff's property has been damaged for public purposes without just and adequate compensation being first paid, contrary to and against the provisions of article 1, section 3, paragraph 1 of the Constitution of Georgia of 1945 (Code, Ann., § 2-301), which reads in part as follows: "Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid."
On April 3, 1952, the plaintiff filed two amendments to her petition. By the first she changed the distances mentioned in paragraphs 11, 24, 25, and 31 from 1200 feet to 1130 feet; by the second amendment, she struck and eliminated paragraph 37 of the petition. On that same day the defendant filed general and special demurrers to the petition as thus amended. The trial court, without considering the special demurrers, sustained the general demurrer and dismissed the petition, and the plaintiff excepted to that judgment.
1. The judgment of January 30, 1952, overruling the general demurrer to the petition and to the petition as amended, to which no exception was taken, established, as the law of the case, that the petition and the petition as amended stated a cause of action. Darling Stores Corp. v. Beatus, 197 Ga. 125 ( 28 S.E.2d 124), and cases cited.
2. The question is posed, however, whether or not the amendments of April 3, 1952, were so material as to subject the petition as then amended to demurrer. It is conceded by counsel for the defendant that the first amendment of that date, concerned with the distances between the plaintiff's residence and the cities of College Park and Atlanta, was an immaterial one and no further mention of that amendment need be made here.
It is strongly contended, however, by counsel for the defendant that the plaintiff's amendment of that same date which struck paragraph 37 from the petition did so materially change the cause of action as to subject the petition to demurrer for the reason that by eliminating the allegations of paragraph 37 the plaintiff converted her action from one alleging her damage to flow from an illegal act of the defendant to one alleging her damage to flow from a legal act of the defendant. In view of the allegations of fact contained in the petition as a whole, we cannot agree with this contention.
It is elementary that the nature of an alleged cause of action is to be determined from the facts alleged and not from the conclusions of the pleader. The allegation in paragraph 37 that "the closing of the said highway was without legal authority and, therefore, was and is unlawful," is not determinative of the legality of the defendant's action in closing the road. True, the nature of the road in question is not stated, but there is no special demurrer upon that score; and if the road was a public county road, paragraphs 26, 27, 28, 29, and 30 of the petition specifically alleged that the road was not closed in accordance with the provisions of the Code covering the closing of public county roads; and if such was the nature of the road, the petition demonstrated the illegality of the closure whether or not it contained the allegation of paragraph 37.
Moreover, while the striking of an allegation from a petition that an alleged act was illegal might ordinarily cause one to infer that the pleader intended by striking the allegation to allege that the act was legal, such an inference is precluded in the present case. Even with the allegation of paragraph 37 eliminated from the petition, it still contained the allegations of paragraph 40 to the effect that the plaintiff's property was damaged by the closing of the road in violation of Code (Ann.) § 2-301, which provides: "Private property shall not be taken or damaged, for public purposes, without just and adequate compensation being first paid"; and still contained the allegation of paragraph 31 that "the right to use Washington Road to College Park and Atlanta was a right appurtenant to petitioner's land and a property right," and with these two paragraphs still remaining, by no process of reasoning could it be inferred that the plaintiff, by striking the allegation of paragraph 37, intended to allege that the defendant's closure of the road was legal.
The striking of the allegation of paragraph 37 was an immaterial amendment and did not re-open the petition to demurrer after that amendment; and, the trial court, having, by its judgment of January 30, 1952, established, as the law of the case, that the petition stated a cause of action, erred in sustaining the general demurrer thereto, after the immaterial amendment of April 3, 1952, at a term subsequent to its judgment of January 30, 1952.
3. The plaintiff's contention, that the defendant's failure to object and preserve exception to the allowance of the general demurrer after the immaterial amendment precludes a consideration of the propriety of that action by this court, is untenable. Garner v. Wolport, 84 Ga. App. 876 (2) ( 67 S.E.2d 824). The ruling in Robertson v. Tallulah Falls Ry. Co., 29 Ga. App. 530 (1) ( 116 S.E. 65), apparently to the contrary, upon which counsel for the defendant rely, is obiter as the court there said that the amendment was a material one. See in this connection Green v. Spires, 189 Ga. 719 ( 7 S.E.2d 246).
Judgment reversed. Gardner, P. J., and Townsend., J., concur.