Lumpkin v. State Highway Department , 114 Ga. App. 145 ( 1966 )

Nichols, Presiding Judge,

concurring specially. While I agree that the judgment of the trial court must be reversed and that generally the appellate courts will not overrule prior decisions when the case may be otherwise correctly decided, yet where as in a ease like the one sub judice there is a point of law, which will be at issue in many cases before the trial courts, then the question of whether prior decisions should be overruled ought to be squarely faced.

Headnote 2 of the decision in State Highway Dept. v. Ford, 112 Ga. App. 270, supra, holds that under § 2 of the Act of 1955 (Ga. L. 1955 pp. 559, 560; Code Ann. § 95-1701a), no right of ingress and egress to “limited access” highways results from the ownership of property abutting such highways, and therefore when property is condemned for a “limited access” highway the owner of property, a part of which is condemned for such highway, cannot recover for the lack of ingress and egress because such right never existed.

In view of the recent decision of the Supreme Court in Bowers v. Fulton County, 221 Ga. 731 (146 SE2d 884), and after a review of older decisions of the Supreme Court, in the light of such opinion, I am now convinced that the decision in State Highway Dept. v. Ford, supra, which was followed in State Highway Dept. v. Geehr, 112 Ga. App. 664 (145 SE2d 736), is in conflict with the Supreme Court decisions and should be overruled.

In the Bowers case, supra, it was held that the owner of property being condemned for public purposes is entitled to just and adequate compensation, which is “inclusive of damage to every species of property, real and personal, corporeal and incorporeal.” Such decision also quoted the following language from Woodside v. City of Atlanta, 214 Ga. 75, 83 (103 SE2d 108), “The term ‘property’ is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subject to be owned and enjoyed. Wayne v. Hartridge, 147 Ga. 127, 132 (92 SE 937). The term [property] comprehends not only the thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from the use. 18 Am. Jur. 787, § 156.”

In State Highway Board v. Baxter, 167 Ga. 124 (1) (144 SE 796), the Supreme Court in holding that the owner of property abutting a public road has a right of ingress and egress from such public roadway said: “Owners of land abutting upon a highway have the right to use and enjoy the highway in common with other members of the public; and in addition they have an easement of access to their land abutting upon the highway, arising from the ownership of such land contiguous to the highway, which easement of access does not belong to the public generally, and which exists regardless of whether the fee of the highway is in said owners or not.” In the corresponding division of the opinion it was held: “This easement of access is a property right which cannot be damaged or taken from such owner without due compensation.” And in Hard v. Housing Auth. of Atlanta, 219 Ga. 74 (132 SE2d 25), the Supreme Court laid at rest the contention that a property owner is not entitled to be paid for the enhancement in value of his property resulting from the announced use of the property by the condemning Authority.

The Act of 1955 (Ga. L. 1955, p. 559 et seq.; 'Code Ann. Ch. 95-17a) provides that property may be condemned for “limited access” highways but makes no reference to the determination of just and adequate compensation for the property taken or damaged for such highways. Nor indeed could such an Act provide a measure of compensation contrary to the Constitution although it could prescribe the “method of determining the measure of compensation.” See Bowers v. Fulton County, 221 Ga. 731, supra, citing Oliver v. Union Point & W. P. R. Co., 83 Ga. 257 (2) (9 SE 1086).

It was expressly held in the case of State Hwy. Board v. Baxter, 167 Ga. 124, 134, supra: “The legislature cannot bestow upon one of its boards the right to take or damage private property for public use without just and adequate compensation. We have seen that the right of the owner of land abutting upon a public highway to an easement of access is a property right; and such right is protected under the Constitution of this State.” The right of access accrues simultaneously with the taking, and if the right of access is also condemned, just and adequate compensation therefor must be paid.

Accordingly, the holding in the second division of State Highway Dept. v. Ford, 112 Ga. App. 270, supra, and followed in State Highway Dept. v. Geehr, 112 Ga. App. 664, supra, should be overruled and the judgment of the trial court granting the condemnor a new trial based on such decision reversed.

I am authorized to state that Judge Erankum concurs in this special concurrence.