Potts v. State Highway Department

Court of Appeals of Georgia

Potts v. State Highway Department

169 S.E.2d 678, 120 Ga. App. 164, 1969 Ga. App. LEXIS 704

CourtCourt of Appeals of Georgia

DecidedJuly 15, 1969

Docket44314

StatusPublished

Cited by4 cases

This text of 169 S.E.2d 678 (Potts v. State Highway Department) 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.

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Potts v. State Highway Department, 169 S.E.2d 678, 120 Ga. App. 164, 1969 Ga. App. LEXIS 704 (Ga. Ct. App. 1969).

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Opinion

Deen, Judge.

The sole question in this condemnation case, it having been stipulated that consequential damages to the land not taken were exceeded by consequential benefits, is whether the just and adequate compensation awarded the owner by the condemning authority taking land for a non-access or limited access highway includes compensation for the taking of the owner’s easement of access to the highway being constructed. Appellants rely on State Hwy. Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557) and on Streyer v. *165 Ga. S. & F. R. Co., 90 Ga. 56, 60 (15 SE 637), where it is said: “This easement is property in constitutional intent and is subject to taking just as the land itself.”

Argued March 4, 1969 Decided July 15, 1969 Rehearing denied July 29, 1969 Glover & Davis, J. L. Glover, Welborn B. Davis, Jr., for appellant. Arthur K. Bolton, Attorney General, Richard L. Chambers, John H. Hicks, Assistant Attorneys General, Sanders, Mottola & Haugen, Charles Van S. Mottola, for appellee.

However, in Klumok v. State Hwy. Dept., 119 Ga. App. 505 (167 SE2d 722), this court held that “this loss of access rights is merely an element of consequential damages to those portions of his land which are not taken.” Under this ruling it was not error for the court to disallow evidence as as to the value of the loss of access to Interstate Highway 85 as an element of damage not included within the term consequential damages.

Judgment affirmed.

Bell, P. J., and Eberhardt, J., concur.

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Deen, Judge.

The sole question in this condemnation case, it having been stipulated that consequential damages to the land not taken were exceeded by consequential benefits, is whether the just and adequate compensation awarded the owner by the condemning authority taking land for a non-access or limited access highway includes compensation for the taking of the owner’s easement of access to the highway being constructed. Appellants rely on State Hwy. Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557) and on Streyer v. *165 Ga. S. & F. R. Co., 90 Ga. 56, 60 (15 SE 637), where it is said: “This easement is property in constitutional intent and is subject to taking just as the land itself.”

Argued March 4, 1969 Decided July 15, 1969 Rehearing denied July 29, 1969 Glover & Davis, J. L. Glover, Welborn B. Davis, Jr., for appellant. Arthur K. Bolton, Attorney General, Richard L. Chambers, John H. Hicks, Assistant Attorneys General, Sanders, Mottola & Haugen, Charles Van S. Mottola, for appellee.

However, in Klumok v. State Hwy. Dept., 119 Ga. App. 505 (167 SE2d 722), this court held that “this loss of access rights is merely an element of consequential damages to those portions of his land which are not taken.” Under this ruling it was not error for the court to disallow evidence as as to the value of the loss of access to Interstate Highway 85 as an element of damage not included within the term consequential damages.

Judgment affirmed.

Bell, P. J., and Eberhardt, J., concur.

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169 S.E.2d 678, 120 Ga. App. 164, 1969 Ga. App. LEXIS 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potts-v-state-highway-department-gactapp-1969.

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