State Highway Department v. Barrett

185 S.E.2d 624, 124 Ga. App. 703, 1971 Ga. App. LEXIS 1070

Opinion

Eberhardt, Judge.

1. The provisions of Code § 95-1505 do not authorize the bringing of a suit for damages against the State Highway Department, whether on the theory of negligence or of nuisance. Tounsel v. State Hwy. Dept., 180 Ga. 112 (178 SE 285).

2. Nor can the suit be maintained under the provisions of Code § 95-1619, which is a venue statute only. State Hwy. Dept. v. Southern R. Co., 215 Ga. 71 (108 SE2d 699).

3. A contrary result is not authorized by the holding in Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141, 34 ALR3d 1002), which dealt with the liability of a municipality for the maintenance of a nuisance. The status of the State Highway Department is more like unto that of a county; it cannot be equated to a municipality. It is an agency of the State and a part of the sovereign. Tounsel v. State Hwy. Dept., 180 Ga. 112, supra. And see Born v. Fulton County, 51 Ga. App. 537 (181 SE 106).

4. Even if it were to be held that the Highway Department could be held for the maintenance of a nuisance, it is clear that the mowing of grass on the shoulders of a highway as a part of the highway maintenance program does not constitute a nuisance, nor does the fact that a rock may have been thrown by the mowing equipment, striking the car of a passing motorist, make it such, and the petition sets out no claim upon which relief can be granted.

Consequently, the trial court erred in denying the motion of the State Highway Department to dismiss, and the judgment must be

Reversed.

Jordan, P. J., and Hall, P. J., concur. Whitman, J., not participating.