Harrell v. Monroe County

250 S.E.2d 20, 147 Ga. App. 685, 1978 Ga. App. LEXIS 2899

Opinion

Deen, Presiding Judge.

Henry G. Harrell and Betty S. Harrell brought a suit for damages against Monroe County alleging that the county damaged their land when it graded a road which adjoined their property. The trial court granted defendant’s motion to dismiss because the county has governmental immunity from such an action. Held:

Under the rule set forth in Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260) (1968), this court held that "a motion to dismiss a complaint for failure to state a claim should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” We find that plaintiffs have alleged a taking of private property for a public purpose. A pláintiff may recover when construction of a road results in flooding, washing of gullies, sanding of land, etc. Felton Farm Co. v. Macon County, 49 Ga. App. 239 (175 SE 29) (1934). An action for the taking of private property for a public purpose is specifically exempted from the jurisdiction of the State Court of Claims. Ga. Constitution, Art. VI, Sec. V, Par. I (Code Ann. § 2-3401).

Argued September 13, 1978 Decided October 23, 1978. W. B. Mitchell, Franklin Elmo Remick, for appellants. Melton & Melton, C. Robert Melton, for appellee.

Judgment reversed.

Smith and Banke, JJ., concur.