Dougherty County v. Pylant

Court of Appeals of Georgia

Dougherty County v. Pylant

122 S.E.2d 117, 104 Ga. App. 468, 1961 Ga. App. LEXIS 717

CourtCourt of Appeals of Georgia

DecidedSeptember 6, 1961

Docket38977

StatusPublished

Cited by9 cases

This text of 122 S.E.2d 117 (Dougherty County v. Pylant) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dougherty County v. Pylant, 122 S.E.2d 117, 104 Ga. App. 468, 1961 Ga. App. LEXIS 717 (Ga. Ct. App. 1961).

Pincite

Opinions

Jordan, Judge.

These headnotes do not require any elaboration in the opinion.

In Dougherty County v. Pylant, 216 Ga. 102 (114 SE2d 861), the Supreme Court on writ of certiorari to the Court of Appeals (See Dougherty County v. Pylant, 100 Ga. App. 856, 112 SE2d 334) held that a suit brought by the present plaintiffs based on the identical cause of action was premature in that the conditions of Code § 95-1712 had not been met because the construction of the State-aid road upon which the cause of action was based had not been completed and the road formally opened to traffic by the State Highway Department. The instant petition alleges that this condition precedent has occurred in that the road has been opened to traffic. However, the allegations of the amended petition affirmatively disclose that prior to the opening of the road to traffic plaintiffs sold the property which is alleged to have been damaged by the construction of said highway. [470]*470For this reason it is contended by the defendants that the petition failed to state a cause of action and that the trial judge accordingly erred in overruling the general demurrers thereto.

With this contention we cannot agree. While it was held in Waters v. DeKalb County, 208 Ga. 741 (69 SE2d 274) that a cause of action for injury and damage to private property resulting from the construction of a road or highway by the State Highway Department does not accrue until the completion of the project and its opening to traffic by the board, it is our opinion that, as held in State Highway Dept. v. McClain, 216 Ga. 1 (114 SE2d 125), this simply restricts the authority of the property owner to institute suit until this condition precedent has been performed.

Accordingly, where the allegations of the petition disclose that the plaintiff’s property, at the time owned by him, was damaged by the construction of said project and its market value diminished, it is immaterial that the plaintiff no longer owns the property at the time at which suit may be instituted.

The measure of damages in such case, however, is still the diminution in market value of the property as between the time immediately before the construction of the project and immediately after the compliance with the provisions of Code § 95-1712.

The instant petition stating a cause of action, the trial court did not err in overruling the general demurrers thereto.

Judgment affirmed.

Townsend, P. J., and Frankum, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Jordan, Judge.

These headnotes do not require any elaboration in the opinion.

In Dougherty County v. Pylant, 216 Ga. 102 (114 SE2d 861), the Supreme Court on writ of certiorari to the Court of Appeals (See Dougherty County v. Pylant, 100 Ga. App. 856, 112 SE2d 334) held that a suit brought by the present plaintiffs based on the identical cause of action was premature in that the conditions of Code § 95-1712 had not been met because the construction of the State-aid road upon which the cause of action was based had not been completed and the road formally opened to traffic by the State Highway Department. The instant petition alleges that this condition precedent has occurred in that the road has been opened to traffic. However, the allegations of the amended petition affirmatively disclose that prior to the opening of the road to traffic plaintiffs sold the property which is alleged to have been damaged by the construction of said highway. [470]*470For this reason it is contended by the defendants that the petition failed to state a cause of action and that the trial judge accordingly erred in overruling the general demurrers thereto.

With this contention we cannot agree. While it was held in Waters v. DeKalb County, 208 Ga. 741 (69 SE2d 274) that a cause of action for injury and damage to private property resulting from the construction of a road or highway by the State Highway Department does not accrue until the completion of the project and its opening to traffic by the board, it is our opinion that, as held in State Highway Dept. v. McClain, 216 Ga. 1 (114 SE2d 125), this simply restricts the authority of the property owner to institute suit until this condition precedent has been performed.

Accordingly, where the allegations of the petition disclose that the plaintiff’s property, at the time owned by him, was damaged by the construction of said project and its market value diminished, it is immaterial that the plaintiff no longer owns the property at the time at which suit may be instituted.

The measure of damages in such case, however, is still the diminution in market value of the property as between the time immediately before the construction of the project and immediately after the compliance with the provisions of Code § 95-1712.

The instant petition stating a cause of action, the trial court did not err in overruling the general demurrers thereto.

Judgment affirmed.

Townsend, P. J., and Frankum, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

122 S.E.2d 117, 104 Ga. App. 468, 1961 Ga. App. LEXIS 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dougherty-county-v-pylant-gactapp-1961.

Opinions

Related

Cite This Page — Counsel Stack