Fountain v. Metropolitan Atlanta Rapid Transit Authority
Fountain v. Metropolitan Atlanta Rapid Transit Authority
Opinion of the Court
If Medieval theologians could detect “twenty-nine distinct dam-nations” in a single verse of St. Paul’s Epistle to the Galatians, as recorded in the poet Browning’s “Soliloquy of the Spanish Cloister,”
In the early 1920’s appellant’s father and grandfather opened a service station at the intersection of East Lake Drive (running generally north and south) and College/West Howard/DeKalb Avenue (running generally east and west).
In 1976 MARTA condemned an unused area of appellant’s property for a retention pond to accommodate an anticipated increase in drainage to be caused by MARTA construction. During the litigation attendant upon that condemnation, appellant Fountain testified that the taking of this portion of his property would cause a decline in profits, since he had planned to expand his station so as to include self-service facilities, and that the condemned property was needed for the projected updating and expansion. Fountain was compensated for this taking in an amount not disclosed in the record of the case at bar.
In January 1981 Fountain filed simultaneous actions against MARTA in the Superior Court of Fulton County and the U. S. District Court for the Northern District of Georgia, alleging violations of rights guaranteed under state and federal constitutions and laws. In June 1981 the case was ordered placed on the superior court’s inactive calendar for six months pending the decision of the federal courts. The Eleventh Circuit found that appellant stated a federal claim for the denial of an economically viable use of the property without payment of just compensation, but directed the District Court to abstain while the superior court, in the exercise of its concurrent jurisdiction, made its determination. Fountain v. MARTA, 678 F2d 1038 (11th Cir. 1982).
At the close of the evidence in the state action, appellant unsuccessfully moved for a directed verdict on the issue of liability. A jury returned a verdict in favor of defendant/appellee MARTA. After denial of his motions for judgment notwithstanding the verdict and for a new trial, Fountain appealed to the Supreme Court, which transferred the appeal to this court. Held:
1. Appellant contends in the first of his eighty enumerations of error that the trial couri erred in denying his motion for a directed verdict on the issue of liability — i.e., whether or not a compensable taking occurred. For the reasons set forth in the following paragraphs, we agree with appellant that denial of his motion was error.
“If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). A directed verdict is improper where
“Except as otherwise provided in this paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Const, of Ga., Art. I, Sec. Ill, Par. I (a). “Except in cases of extreme necessity and great urgency, the right of eminent domain cannot be exercised without first providing for just compensation to the owner for the interference with his exclusive rights.” OCGA § 22-1-5. A compensable taking is not confined to the taking of the entire fee, nor does it necessarily consist of a physical invasion of the property. Dougherty County v. Hornsby, 213 Ga. 114 (97 SE2d 300) (1957). The taking of any property interest, including, inter alia, the easement of access to a public road or street upon which the property abuts — that is, the right of ingress and egress — may constitute such a taking as is contemplated by relevant constitutional provisions and statutory law. Metropolitan Atlanta Rapid Transit Auth. v. Datry, 235 Ga. 568 (220 SE2d 905) (1975); State Hwy. Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557) (1966).
In order to be compensable, however, the injury resulting from the taking must be peculiar to the complaining owner or occupant, as distinguished from that experienced by the general public; if the plaintiff’s injury is merely greater in degree than that of the general public but is of the same kind, then his injury is not compensable. Dougherty County v. Hornsby, supra. The owner of property abutting upon a public road has rights of ingress and egress which do not belong to the public generally. State Hwy. Dept. v. Lumpkin, supra. The owner of land abutting on the public road is not per se entitled, as against the public, to access to his land at all points on the boundary between the property and the road. When his easement of access has been interfered with, however, he must be offered a convenient
OCGA § 22-2-1 et seq. provides the proper procedure for the taking of private property through condemnation, or the exercise of eminent domain. “If the public authority does not proceed directly to condemn, [however,] the injured citizen, nonetheless has a right to compensation under the state constitution. A cause of action will lie. The measure of damages has been established by the cases. [Cits.] Such an action has been called an ‘inverse condemnation’ action.” Powell v. Ledbetter Bros., 251 Ga. 649, 650 (307 SE2d 663) (1983). See also Fulton County v. Baranan, 240 Ga. 837 (242 SE2d 617) (1978); Downside Risk v. MARTA, 156 Ga. App. 209 (274 SE2d 653) (1980).
In Dept. of Transp. v. Whitehead, 253 Ga. 150 (317 SE2d 542) (1984), DOT condemned the entire frontage of the two converging arterial streets on which Whitehead’s property faced. He was left his existing direct vehicular access to a third street which connected the two converging streets and off which he maintained a driveway and parking lot; but one end of this connecting street was closed by the condemnor, thereby preventing indirect vehicular access onto one of the arterial streets via this third street. His pedestrian access to the converging arterial streets was not disturbed, but he lost his right to place a driveway in front of his property so as to provide direct vehicular access to these two converging streets. The trial court admitted evidence on inconvenient and circuitous travel necessitated by the loss of access to the two main streets, and the court charged the jury that appellant Whitehead could recover for interference with access. The jury awarded a sizable sum in damages, and the judgment of the trial court was affirmed both by this court and by the Supreme Court.
In stating the basis for its decision, the Supreme Court quoted MARTA v. Datry, 235 Ga. 568, 575, supra: “The right of access, or easement of access to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation being first paid . . . The easement consists of the right of egress from and ingress to the abutting public road and from there to the system of public roads.” The court continued at 152: “Thus the DOT deprived Whitehead of his easement of access onto the abutting
Except for the fact that the condemnation procedure was utilized in Whitehead and not in the instant case, Whitehead is precisely on point with the case sub judice. Under the statutory and case law cited supra, MARTA’s actions with reference to appellant’s property clearly constituted a taking, and the jury should have been instructed, pursuant to OCGA § 9-11-50 (a), that the court was directing a verdict for appellant on the issue of liability. The trial transcript makes it plain that the court was well aware of the appositeness of Whitehead to the case at bar and relied on Whitehead as he ruled on the evidence proffered at trial. The transcript further reveals, however, that the court erred at one particular point in his reading of Whitehead. In response to appellant’s motion for a directed verdict the court remarked: “Well, the Whitehead case covers this question . . . This is a jury question. And if the jury finds that there was not any testimony that . . . they [MARTA] interfered with [access], he can recover for all the things that Katz [DOT v. Katz, supra] said he couldn’t. . . But [Whitehead] said the jury should consider any alter
We are persuaded that the evidence in the instant case meets the criteria of OCGA § 9-11-50 (a), and that the trial court erred in denying appellant’s motion for a directed verdict on the issue of liability. We therefore reverse the judgment below and remand the case for retrial of the issue of damages.
2. Having determined in Division 1, supra, that the trial court committed reversible error, we do not address appellant’s remaining enumerations.
Judgment reversed.
Robert Browning, Works. The biblical text is Galatians 3:10; cf. Deuteronomy 28:16-68. Consistently, plaintiff/appellant adduced ninety-nine exhibits at trial, of which approximately two-thirds were admitted and form a part of the record. See Coolik v. Hawk, 133 Ga. App. 626, 628 (212 SE2d 7) (1974), where “forty-nine” damnations were inadvertently cited rather than “twenty-nine.”
In that section of the Atlanta/Decatur area, there is in most places a street on both sides of the railroad tracks, each side having its own separate name. Moreover, the name on each side changes several times between downtown Atlanta and the Decatur/Avondale area.
There was considerable contention at the trial of the instant case as to how much, if any, testimony regarding the prior litigation was admissible.
Concurring Opinion
concurring specially.
I believe it important to point out that it is because of the facts in this case that liability was established and a directed verdict thereon was demanded. The undisputed facts showed that Fountain’s property right, his easement of access, had been substantially interfered with and the convenience of access negatively affected to a degree which constituted a compensable taking as a matter of law. This is the test of determining whether there has been a taking, set out in State Hwy. Bd. v. Baxter, 167 Ga. 124 (144 SE 796) (1928) and applied in Johnson v. Burke County, 101 Ga. App. 747, 749 (115 SE2d 484) (1960), which the majority has cited for this proposition. The “substantial” language was carried forward in Homeyer v. State Hwy. Dept., 112 Ga. App. 462, 464 (145 SE2d 613) (1965). So in some cases the question of whether the taking was compensable in the first place would be a question for the jury.
That is what the trial court may have had in mind here when it construed Dept. of Transp. v. Whitehead, 253 Ga. 150 (317 SE2d 542) (1984) to make liability a jury question. Whitehead, however, does not deal with the question of liability vel non, but rather with
The point is, not every interference with access is a compensable taking. It is such if the interference “impedes” (“substantially interferes with”) or “render(s) difficult ingress or egress”. Johnson, supra at 749. Even where the evidence conclusively establishes it so as not to require the determination by a jury, as here, the evidence of the degree of inconvenience and circuity of travel are also relevant to the issue of the amount of damages. That is the lesson of Whitehead.
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