State Highway Department v. Barrett , 124 Ga. App. 703 ( 1971 )

124 Ga. App. 703 (1971) 185 S.E.2d 624

STATE HIGHWAY DEPARTMENT
v.
BARRETT et al.

46333.

Court of Appeals of Georgia.

Argued June 30, 1971. Decided October 26, 1971.

Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, William B. Brown, Assistant Attorneys General, for appellant.

J. M. Grubbs, Jr., Adele W. Platt, for appellees.

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 S.E. 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 S.E. 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.