Riviera Associates v. Department of Transportation

329 S.E.2d 221, 174 Ga. App. 29, 1985 Ga. App. LEXIS 1733

• Court: Court of Appeals of Georgia
• Decided: March 6, 1985
• Docket: 69300
• Status: Published

Opinion

Benham, Judge.

Appellants own a motel on Peachtree Street in Atlanta adjacent to the right-of-way of several limited access highways. An exit ramp from 1-85 North entered Peachtree Street near the northeast corner of appellants’ property until the ramp was closed as a part of the highway project involved in this case. In the present condemnation case, which arises from the taking of a portion of appellants’ property not affecting access to Peachtree Street, appellants sought to recover for diminution in value of its property because of the closing of the exit ramp. This appeal is from a judgment denying that additional recovery.

Decided March 6, 1985 Rehearing denied March 20, 1985 Frank Love, Jr., for appellants. J. Matthew Dwyer, Jr., Special Assistant Attorney General, Edward S. Sams, Robert C. Glustrom, for appellee.

This case is controlled by this court’s decisions in Fountain v. DeKalb County, 154 Ga. App. 302 (1) (267 SE2d 903) (1980); and Dept. of Transp. v. Simon, 151 Ga. App. 807 (1) (261 SE2d 710) (1979), affd. sub nom., Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980). In Simon, the Supreme Court expressly rejected the “effect of the project” argument advanced by appellants and went on to agree with this court that damages resulting from some part of the project other than the taking of the condemnee’s property, “if compensable, must be sought in a separate action against the con-demnor.” Id. at 480.

Accordingly, we hold that the trial court was correct in granting partial summary judgment to appellee/condemnor on the issue of damages attributable not directly to the taking of appellants’ property, but to other parts of the same project.

Judgment affirmed.

Banke, C. J., and Pope, J., concur.