Bartow County v. Darnell

97 S.E.2d 610, 95 Ga. App. 193, 1957 Ga. App. LEXIS 751

Opinions

Quillian, J.

1. In an action for damages to private property instituted under Article I, Section III, Paragraph I, of the State Constitution, and Code § 95-1710, allegations showing the nature of the cause, describing the property damaged, and relating the manner in which the property was damaged in the construction of a designated State highway, are proper and necessary to set forth the plaintiffs’ case, hence are not subject to demurrer on the ground that they are irrelevant and immaterial to the cause alleged in the petition.

2. Averments that a fill was constructed adjacent to the plaintiffs’ fertile field 60 feet high, 1379 feet long, with a 4-foot culvert at its base, resulting in water from 1% miles along the highway being cast in great quantities upon the field, inundating it and rendering it valueless, were directly pertinent facts and not subject to the criticism that they were conclusions of the pleader or irrelevant to the cause set out in the petition.

3. The allegation in a petition brought to recover damages under the constitutional provision and Code section referred to in headnote 1 that “as a result of the negligent construction of said highway, the value of plaintiffs’ property has diminished in value not less than $5000, which amount plaintiffs have been injured and damaged,” was not subject to demurrer on the ground that the damages claimed were appropriate solely to an action sounding in tort or for the maintenance of a continuing nuisance and were not recoverable in an action of the nature instituted. The petition clearly showed that the damages sued for were such as could be recovered regardless of whether the defendant was prudent or negligent in the construction of the highway which resulted in damage to plaintiffs’ property. The word “negligence” as used in the criticised phrase was harmless surplusage.- Perkerson v. Mayor &c. of Greenville, 51 Ga. App. 240 (180 S. E. 22); Habersham County v. Knight, 63 Ga. App. 720 (12 S. E. 2d 129). Nor was the quoted allegation subject to demurrer on the ground that it was a conclusion alleged in the petition.

Decided January 24, 1957 Rehearing denied February 22, 1957. Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Lamar L. Murdaugh, Assistant Attorneys-General, for plaintiff in error. Marion W. Corbitt, contra.

4. The petition showed the nature and extent of the damage done to plaintiffs’ field.

5. Had the demurrer been predicated upon the failure of the petition to allege the correct measure of damages, a different question would have been presented. Jones v. Richmond County, 61 Ga. App. 857 (7 S. E. 2d 754).

6. Under the rules stated in the preceding headnotes there was no error in overruling the general and special demurrers which were directed against the petition.

7. A motion to purge directed only against the allegation that the plaintiffs’ property was damaged in constructing the State highway and made on the ground that the averment attacked was irrelevant and immaterial was, under authority of Calhoun v. Dooly County, 65 Ga. App. 482 (15 S. E. 2d 816), properly overruled.

Judgment affirmed.

Nichols, J., concurs. Felton, C. J., concurs in the judgment.