Cheek v. Floyd County

308 F. Supp. 777, 1970 U.S. Dist. LEXIS 13019
CourtDistrict Court, N.D. Georgia
DecidedJanuary 29, 1970
DocketCiv. A. No. 1921
StatusPublished
Cited by3 cases

This text of 308 F. Supp. 777 (Cheek v. Floyd County) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cheek v. Floyd County, 308 F. Supp. 777, 1970 U.S. Dist. LEXIS 13019 (N.D. Ga. 1970).

Opinion

SIDNEY O. SMITH, Jr., District Judge.

This is a diversity suit in which the plaintiff seeks to recover damages to her property, claimed to have been occasioned by the construction of. the “East Rome Interchange Project”, a state highway facility to which it is adjacent. None of her property was taken for the project. However, certain grade and traffic changes were made to public streets and highways bordering the property which it is contended caused the damages claimed. As originally constituted, the suit sought recovery for:

(1) Loss of public access, temporary and permanent.
(2) Change of grade.
(3) Loss of parking, both on-premises and off-premises.
(4) Physical damage from the construction both temporary and permanent.
(5) Noise, fumes and lights as continuing damage.

Heretofore, the court on motion has considered some of the legal problems involved in such claims when the property owner does not occupy the status of a condemnee under eminent domain proceedings. However, inasmuch as evidence has now been taken, and a trial by view had by the court, the entire problem must be reconsidered in light of the facts.

FINDINGS OF FACT

The facts are best understood by reference to the appended Exhibit “A”, which represents the situation before the project and Exhibit “B” which represents the situation after completion of the project.

In 1959, plaintiff entered into a contract to purchase the property in question from Lucia McKay for $90,000 and to that end, the parties made substantial repairs on its two buildings; one being the 14-unit Eastwood Apartment House and the other being a 900 square foot [779]*779store building known as the “SCOTCH WASH.” Apparently, the plaintiff took over the effective ownership of the property under the contract at such time, although no deed was executed until June, 1963.

The property is triangular in shape and is located in the northwest corner of the intersection of Brooks Avenue1 and East 2nd Avenue in Rome, Georgia. Prior to the purchase, Brooks Avenue north had been four-laned to a point just east of the center of the apartment house and traffic islands installed, controlling traffic into the intersection from East 11th Street on the east, Brooks Avenue on the north, and East 2nd Avenue on the west and toward the south. This arrangement permitted vehicular access to the property from Brooks Avenue (proceeding North), East 11th Street (traveling West), East 2nd Avenue (traveling South and West) and, remotely East 10th Street (traveling North). At the time, and for many years prior thereto, the property had used 25 feet of the right-of-way between East 2nd Avenue and the West line of the property for parking for both the apartment house and “Scotch Wash”. In addition, a parking apron had been paved just west of the “Scotch Wash” building within the property limits for such purpose. Traffic from all the directions mentioned above had, in fact, approached the intersection and utilized the on-property and off-property parking areas described. Also, on-street parking was allowed on Brooks Avenue.

On July 28, 1965, work began on the project, of which this intersection is a part, which primarily involved the extension of the four-laned Brooks Avenue to the south to an interchange of major highways and the construction of access ramps to the interchange. All construction, including paving was completed by September 20, 1966, and the project accepted in December, 1966. Local traffic was maintained for all but a few days, but the project occasioned the usual annoyances of dust, mud, noise and temporary loss of access attendant to any such undertaking.

Insofar as physical changes are concerned, Ramp “B” was constructed leading from Brooks Avenue westerly into East 2nd Avenue and Ramp “A” was constructed leading from East 2nd Avenue southerly to the interchange. In addition, Brooks Avenue was widened and paved from its former terminus southerly to the interchange. At the time, the plaintiff sought to have Ramp “B” constructed with a valley curb, which would continue to admit vehicular traffic all along her western line into the property. Nonetheless, it was constructed with a 4" mountable, i. e. rounded, curb, which effectively discourages such practice. The right-of-way between the old street and sidewalk has been reduced to 12 feet. While cars continued to use the old areas devoted to parking, both on and off the property, they do so only by “bumping up” the curb or by entry at the existing driveway at the northwest end of the property and traveling down the old sidewalk and unpaved right-of-way. Parking insofar as Brooks Avenue and the parking area on the north side of the property are concerned is virtually unaffected. Ramp “B” is elevated above Brooks Avenue in a westerly direction into East 2nd Avenue. Ramp “A” is elevated even higher than Ramp “B” and was constructed over a large fill toward the south.

Traffic patterns have been materially changed. The only access to the property remaining is from Brooks Avenue on the east; from Brooks Avenue traveling south into Ramp “B” on East 2nd Avenue; and from travel north on Ramp “A” into East 2nd Avenue. Any reasonable access from 10th Street, 11th Street, or 2nd Avenue from the east and west, except from the two ramps has been denied by the construction of curbed dividers.

[780]*780CONCLUSIONS OF LAW

The Constitution of the State of Georgia provides in relevant part: “Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid. * * *” The parties here concede that the injuries complained of do not involve a taking of property but involve only a damaging of property. A threshold question which requires consideration is the scope of the term “damaged,” i. e., does any diminution of private property occasioned by governmental action constitute a damaging within the meaning of this constitutional provision? At the outset it should be noted that mere depreciation in value as damages has been rejected in most jurisdictions as too broad and these jurisdictions have required that the injuries complained of must fall within some narrower definition of “damage.” 2 Nichols on Eminent Domain, § 6.441 [11 at 488 (3rd Ed. 1963). For a discussion of the reasons for rejecting such a rule, see Nichols, supra at 491. See, e. g., Austin v. Augusta Terminal Ry. Co., 108 Ga. 671, 34 S.E. 852, 47 L.R.A. 755 (1899); Peel v. The City of Atlanta, 85 Ga. 138, 11 S.E. 582, 8 L.R.A. 787 (1890). The Illinois courts were the first to struggle with this problem of defining the scope of this provision and evolved a definition of damage in the constitutional sense which has been generally accepted by the states having similar provisions.

[C]ompensation is required not only when there is an injury that would be actionable at common law, but also in all cases in which it appears that there has been some physical disturbance of a right, either public or private, which the owner of a' parcel of land enjoys in connection with his property and which gives 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.

Nichols, supra at 495-496.

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Bluebook (online)
308 F. Supp. 777, 1970 U.S. Dist. LEXIS 13019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheek-v-floyd-county-gand-1970.