Opinion
38309, 38319.
DECIDED JUNE 2, 1960.
Action for damages. Burke Superior Court. Before Judge Anderson. February 20, 1960.
George W. Fryhofer, for plaintiffs in error.
Eugene Cook, Attorney-General, Paul Miller, Carter Goode, Assistant Attorneys-General, R. U. Harden, contra.
The trial court did not err in sustaining the general demurrer to the plaintiffs' petition for the reason that the petition disclosed no substantial impairment to the means of ingress to the plaintiffs' property nor egress from their property to the State highway.
DECIDED JUNE 2, 1960.
D. L. Johnson and others filed suit in the Superior Court of Burke County against said county for damages alleged to have arisen from the construction by the State Highway Department of a concrete header curb which extends 6 inches above the ground. The petition in this case alleges that the plaintiffs are owners of a tract of land lying on the west side of U.S. Highway No. 25, on which is located the plaintiff's restaurant and gasoline service station, and "that said concrete header curb was constructed by the State Highway Department of Georgia under the authority of the Board of Commissioners of Roads and Revenues of Burke County, Georgia," and "that the State Highway Department of Georgia and the Board of Commissioners of Roads and Revenues of Burke County, Georgia, were empowered by law to construct said concrete header curb at its location within the highway right-of-way." The plaintiffs further allege "that ingress to plaintiffs' said place of business and egress therefrom has been greatly hampered and impeded by the presence of the said concrete header curb," and "that the presence of said header curb completely prevents plaintiffs from selling gasoline to more than one car at a time since the presence of said curb prevents automobiles from parking on the east side of plaintiffs' gasoline pumps as shown on said diagram." A diagram was attached to the petition and incorporated therein showing the location of the plaintiffs' building, gasoline pumps, a concrete island upon which the gasoline pumps are situated, and the concrete header curb. The diagram shows the header curb to be an oval type structure with one side immediately adjacent to the eastern side of the concrete island on which the gasoline pumps are located. The State highway right-of-way line divides the concrete island and the curb.
The plaintiffs contend by their petition that the curb prevents the plaintiffs from selling gasoline to more than one vehicle at a time since the presence of the curb prevents automobiles from parking on the eastern side of plaintiffs' gasoline pumps, and that because there is barely enough room between the island and the service station building to park a vehicle to be serviced, the presence of the header curb makes it appear to motorists approaching the plaintiffs' place of business from either direction that there is not sufficient room to park between the gasoline pumps and the building.
The plaintiffs contend in their petition that prior to the construction of said concrete header curb their property had a fair market value of $15,500, and that the said market value has been greatly reduced by the presence of said curb which impedes ingress to and egress from said property, and "after the construction of said concrete header curb and at the present time the said property has a fair market value of $6,500"; that the acts of the defendant in constructing said curb constituted a taking of their property for public use and that they have not received any compensation for said taking of their property.
On the hearing the trial court entered an order sustaining a general demurrer to the petition and dismissed it. To this ruling the plaintiff excepts.
Code § 2-301, provides: "Private property shall not be taken or damaged, for public purposes, without just and adequate compensation being first paid." "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 in an amount represented by the difference between the market value of the property before and after the procedure taken for public purposes." Dougherty County v. Hornsby, 213 Ga. 114 ( 97 S.E.2d 300), and cases cited therein. The State Highway Board cannot deprive the owners of abutting land of their easement of access without paying to such owners adequate and just compensation therefor. However, as stated in the Hornsby case: "In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property, in excess of that sustained by the public generally . . . The damages . . . that an individual may recover for injuries to his property need not necessarily be caused by acts amounting to a trespass, or by an actual physical invasion of his real estate; but if his property be depreciated in value by his being deprived of some right of user or enjoyment growing out of and appurtenant to his estate as the direct consequence of the construction and use of any public improvement, his right of action is complete, and he may recover to the extent of the injury sustained. . . Accordingly, it has been held that interfering with access to premises, by impeding or rendering difficult ingress or egress, is such a taking and damaging as entitles the party injured to compensation under a provision for compensation where property is damaged." Although the owner of land abutting upon a highway has the right to use and enjoy the highway in common with other members of the public and has an easement of access to the land abutting upon the highway, which easement of access does not belong to the public generally and which exists whether or not the fee of the highway is in the landowner or not, "such owner, however, is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway, if entire access has not been cut off, and if he is offered a convenient access to his property and to improvements thereon, and his means of ingress and egress are not substantially interfered with by the public." State Highway Board v. Baxter, 167 Ga. 124 ( 144 S.E. 796).
In the instant case it conclusively appears from reference to the diagram, a part of the plaintiffs' petition, that the curb in question is so constructed and situated as not to interfere with the right of the plaintiffs, their customers or others, in the matter of ingress and egress.
The diagram places the plaintiffs' gasoline pumps on a concrete island. The island is immediately adjacent to the new oval concrete curb, and as shown by the diagram, the concrete island is also immediately adjacent to the State highway right-of-way. Before the construction there was not sufficient width between the right-of-way and the eastern side of the plaintiffs' concrete island whereby vehicles such as trucks and automobiles could be serviced without such vehicles being parked upon the State highway right-of-way. It is obvious that prior to the construction of the concrete header curb, no such vehicle could have entered plaintiffs' property from that portion of the State highway right-of-way where the header curb is located without going over the gasoline pumps and the concrete island. Under the ruling announced in the Hornsby case, supra, there must be a substantial interference with the rights of ingress or egress. In the instant case the petition, with the attached exhibit, affirmatively shows that there was no substantial interference with the right of access because the particular location of the plaintiffs' gasoline pumps and concrete island prohibited the plaintiffs from using that portion of their property as access to the public highway. The diagram conclusively discloses that the construction of the concrete curb in the highway right-of-way does not involve either a trespass on the plaintiffs' property abutting the highway or any appropriation of the same and it shows no substantial interference with the means of ingress, egress or regress. See State Highway Dept. v. Strickland, 213 Ga. 785 ( 102 S.E.2d 3); State Highway Dept. v. Strickland, 214 Ga. 467 ( 105 S.E.2d 299).
As the petition must be strictly construed against the pleader, the allegations of the petition set forth no facts to show an impairment of the right of access, other than the conclusion that the presence of the concrete header curb was such an impairment which unduly hampered and impeded the plaintiffs' right of access. The plaintiffs fail to show wherein their right of ingress or egress has been impaired. The petition is not aided by the alleged fact that the plaintiffs are unable to service vehicles on the eastern side of the concrete island, because the plaintiffs are not entitled to the use of the State highway right-of-way for the unauthorized parking of customers' vehicles for service or place for private business (see Schlesinger v. City of Atlanta, 161 Ga. 148, 129 S.E. 861), nor does such fact throw light upon any impairment of ingress or egress, in that such vehicles did not use that portion of property as ingress or egress but only to be serviced. In the Hornsby case, supra, which the plaintiffs rely on exclusively, the petition, which is set out in more detail in the Court of Appeals' report ( Dougherty County v. Hornsby, 94 Ga. App. 689, 96 S.E.2d 326), alleges wherein there was an impairment of the right of access and showed a substantial and material injury to ingress to the plaintiffs' property and egress from the property. Also in the instant case the petition does not allege the plaintiffs' means of access before the construction and what substantial limitations, if any, were imposed by such construction. Hence, the petition does not set forth any cause of action, and the trial court did not err in sustaining the general demurrer.
Judgment affirmed on main bill of exceptions; cross-bill dismissed. Gardner, P. J., Townsend and Carlisle, JJ., concur.