Opinion
41574.
SUBMITTED OCTOBER 5, 1965.
DECIDED OCTOBER 15, 1965.
Action for damages. Gwinnett Superior Court. Before Judge Pittard.
Darrell W. MacIntyre, Telford, Wayne Greer, Joe K. Telford, for appellant.
Arthur K. Bolton, Attorney General, Richard L. Chambers, E. J. Summerour, Assistant Attorneys General, Stark Stark, Hope Stark, for appellees.
A petition alleging that plaintiff, owner of property at the intersection of two state-aid roads, constructed a header curb along a portion of the property after demand by representatives of the State Highway Department that she do so, and under threats from them that all access to her property would be cut off if she did not, seeking to recover the depreciation of value in the property alleged to be caused by impairment of access resulting from the header curb, is subject to a general demurrer.
SUBMITTED OCTOBER 5, 1965 — DECIDED OCTOBER 15, 1965.
Mrs. W. R. Homeyer brought suit against Gwinnett County, vouching the State Highway Department in to defend by serving it in accordance with the provisions of Code Ann. § 95-1710, as amended, seeking to recover damages alleged to have been sustained by reason of the following: Plaintiff is the owner of a plot of land located at the southwest corner of the intersection of State Route No. 8 (also known as U.S. Highway No. 29) and State Route No. 124, upon which she operated a gasoline filling station from 1950 until 1963 when it became unprofitable to do so because officials of the State Highway Department had demanded that she construct along her property a concrete header curb approximately six inches high, blocking entrance to the station at the front thereof for a distance of some 30 feet. She alleged that the representatives of the Highway Department informed her that if she did not so construct the header curb they would take steps calculated to close all access to her property from the two roads, and that pursuant to their demands and their threats to cut off all access to her property she did construct the header curb on her property, which has so impaired and restricted access to it that the market value depreciated from $15,000 to $6,500 and that this depreciation in value amounts to a taking of her property without the payment of just and adequate compensation therefor.
To the sustaining of a general demurrer to her petition plaintiff excepts.
The facts alleged in this petition are strikingly similar to those in Johnson v. Burke County, 101 Ga. App. 747 ( 115 S.E.2d 484), except that in that case the header curb was constructed by the Highway Department under the authority of the County Commissioners of Burke County, whereas here it was constructed by the property owner herself. A diagram of the property attached to this petition shows, as did the one attached in that case, that the header curb had some restrictive effect on free access to the filling station, in that vehicles could not approach it across the curb. But here, as there, it appears from the diagram that customers from either road still have access to the station and its pump island. Widening of the highway does make it appear that a relocation of the station will improve plaintiff's position, and that present access from the two roads can thus be better and more fully utilized. We do not regard the impairment of access by reason of the header curb to be substantial, and for the reasons stated in Johnson v. Burke County, and cases there cited, the sustaining of the demurrer was proper.
Additionally, it affirmatively appears from the petition here that if plaintiff's access has been impaired by reason of the construction of the header curb, that is from her act and not that of the county or of the State Highway Department. The curb was constructed by plaintiff on her own land. Though she alleges that this was done in response to a demand from the representatives of the Highway Department that she do so, and under a threat from them to cut off all access to her property if she did not, nothing is alleged that would place her under any duty to construct it, nor are any allegations of fraud or of facts that would support allegations of fraud to be found in the petition. Plaintiff was free to refuse to accede to the demand or to act under any threat. Under the facts pleaded, if plaintiff has suffered any loss by depreciation in the value of her property, it resulted from her own act.
Judgment affirmed. Nichols, P. J., and Pannell, J., concur.