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Declaratory judgment, etc. Fulton Superior Court. Before Judge Pharr. February 15, 1960.
QUILLIAN, Justice.
1. A petition of the State Highway Department for a declaratory judgment, which shows a pressing need in an important matter pertaining to the Department's right in the construction of a highway, and that there is an actual controversy and justiciable issue in reference to such matter set forth a cause for the relief prayed.
2. Where the State Highway Department brings an action for declaratory judgment there is no statute which requires that the county where the subject matter of the suit is located be named a party plaintiff in the case.
3. The cross-action was properly dismissed by the trial court solely because it undertook to set forth a cause of action not germane to that alleged in the petition.
4. The trial court did not err in holding that the plaintiff owed no duty to furnish lateral support to the part of the building left standing on the defendants' property because the loss of lateral support for that part of the property not taken was one of the elements of consequential damages that should have been anticipated by the defendants in the condemnation proceedings in which the defendants received a substantial amount for the consequential damages.
The State Highway Department filed a suit for declaratory judgment against John J. Woodside, Jr., and John J. Woodside Company, Inc., in the Superior Court of Fulton County. The petition as finally amended alleged and prayed: "that the City of Atlanta condemned certain lands in the City of Atlanta belonging to the defendants which land was more particularly described in the pleadings; that petitioner now holds title to said described lands under a deed from the City of Atlanta, dated April 21, 1958, recorded in Deed Book 3323, pages 171-172, in the office of the Clerk of Fulton Superior Court; that said property was acquired as a right of way for a highway; that in the condemnation proceedings all parties, including both defendants, stipulated that the assessors could and should make a lump sum award, covering the value of all property taken and consequential damage to the property not taken, which was done; that it has become necessary to remove from said described premises those portions of the three structures which lay east and south of the diagonal line dividing the lands which were taken from the land of the Woodsides not condemned; that by consent of the Woodsides, one of said buildings was demolished and removed; and a greater portion of the second building which remained upon the expressway side of the property line was demolished; but that there remains a portion of said building on the expressway side of said property line which impedes and will continue to impede the construction and completion of the expressway until removed; that defendants are attempting to make petitioner's entry upon the property for the demolition of that part of said building which must be demolished contingent upon payment of defendants' claim for damages which they allege have been caused by the construction of a sewer along the proposed expressway; that while the petitioner and the City of Atlanta are able to respond in damages if the construction of the sewer has caused the defendants damage, yet such cause of action is wholly unrelated to and disconnected from the necessity faced by this petitioner that the demolition be completed; that an actual controversy exists between the plaintiff and the defendants, within the meaning of the Declaratory Judgment Act (Ga. L. 1945, as amended), for that plaintiff contends that the building which is the subject of this petition, denominated 'Building No. 2', plaintiff as owner of the property condemned and as the owner of the portion of said building located on said property, took said property free from any right of the defendants as owner of the remaining portion to the lateral and other support which the portion of said building on the property condemned, gives to the remaining portion of said building; that petitioner has no adequate remedy at law; wherefore, petitioner prays that the court enter a judgment declaring as to the rights of the plaintiff that: (1) that plaintiff took said property free of any right of the defendants to the lateral and other support which the portion of said building on the property condemned gave and gives to the remaining portion of said building; and (2) that plaintiff owes no duty to defendants to furnish lateral or other support to maintain said Woodside portion as a structural entity, upon the demolition and removal of plaintiff's portion thereof."
The defendants demurred to the petition generally and filed numerous special demurrers. The defendants pleaded that there was a misjoinder of parties in that the action was brought under Code (Ann.) 95-1710 and that the statute required that the county be a party to the action.
The defendants filed an answer in which they admitted that the plaintiff acquired title to the property described by the decree in the condemnation proceedings, and asserted that the defendants were entitled to lateral support for the portion of their lands not taken and lying adjacent to the right-of-way. The answer asserted that these buildings, part of which were on the parcel of land condemned for the right-of-way, had been severed in twain in changing the right-of-way and that these buildings were apt to collapse for the want of lateral support.
The defendants also filed a cross-action alleging that since the final award in the condemnation proceedings, the plaintiff had damaged the defendants' property lying adjacent to the right-of-way by unskillful and negligent work on the right-of-way. This damage was alleged to be an additional taking and damaging of their property, although there was no averment that any part of their property not originally taken had since the conclusion of the condemnation proceedings been appropriated.
The trial judge overruled the general and special demurrers to the petition, struck the defendants' pleas of misjoinder and dismissed their cross-action.
The condemnation proceedings, including the petition, answer and decree were introduced in evidence. There was no other evidence. Counsel were in agreement that the issues made by the petition and answer were resolved into questions of law, and submitted the case to the court without a jury. The court entered a decree granting the plaintiff the relief prayed.
To each of the adverse rulings and judgment of the court the defendants excepted.
1. The petition set forth facts from which appeared the need of the immediate determination of the important question as to whether and what lateral and other support the plaintiff was legally bound to furnish for the parts of the building left standing upon the lots of the defendants coterminous to the right-of-way. The decision of this question was necessary, according to the averments of the petition, in order that the construction of the highway might proceed without undue delay. The petition further alleged that there was an actual controversy and a justiciable issue concerning its duty to furnish support for the buildings on the defendants' adjacent property. Hence, the petition did set forth all of the facts necessary to entitle the plaintiff to the declaratory judgment prayed. Code (Ann.) 10-1101; Brown v. Lawrence, 204 Ga. 788 (51 S. E. 2d 651); Publix-Lucas Theaters v. City of Brunswick, 206 Ga. 206 (56 S. E. 2d 254); Sanders v. Harlem Baptist Church, 207 Ga. 7 (59 S. E. 2d 720); Brown v. Cobb County, 212 Ga. 172 (91 S. E. 2d 516); Hansell v. Citizens & Southern National Bank, 213 Ga. 205 (98 S. E. 2d 622). None of the special demurrers to the petition as amended were meritorious.
2. The defendants' pleas of nonjoinder which alleged that the action was one brought under Code (Ann.) 95-1710 and that according to that statute Fulton County was a necessary party to the suit were properly stricken. The suit was for a declaratory judgment and was not brought under Code (Ann.) 95-1710, hence, a provision of that statute relating to necessary parties was inapplicable to the case made by the petition.
3. The cross-action sought to recover damages to the defendant's property arising out of the unskillful and negligent manner in which the plaintiff prepared the right-of-way. The trial judge did not err in dismissing the cross-action. The cause set out in the petition was for a declaratory judgment to determine certain rights of the plaintiff incident to the plaintiff's use of the right-of-way acquired by the City of Atlanta through the exercise of the power of eminent domain. The cross-action undertook to assert a cause of action for damages arising from the plaintiff's negligence. The cause alleged in the cross-action was not germane to that set forth in the petition. In the case of Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 687 (58 S. E. 2d 383), is the pronouncement: "The petitioner's cause of action was to enjoin an alleged trespass and to establish a dividing line. The defendant's claim for damages, based upon a trespass in an entirely different matter, was not germane and should have been disallowed." Brownlee v. Warmack, 90 Ga. 775 (17 S. E. 102); Atlanta Northern Ry. Co. v. Harris, 147 Ga. 214 (93 S. E. 210). In this connection see Code 8-106.
The sole ground upon which this court rules that the crossaction was properly dismissed by the trial court is that the case therein made was not germane to the action set forth in the petition. No other objections to the cross-action are now ruled upon. This is not to be construed as passing upon the defendant's rights to recover damages in another suit.
4. The court did not err in holding that the plaintiff owed no duty to furnish lateral or other support to the part of the building standing on the portion of the defendant's property not taken. The decree entered up in the proceeding to condemn the right-of-way and which was a part of the evidence adduced on the trial, vested in the plaintiff as successor to the original condemnor title to and the right to use the condemned lands as a highway right-of-way up to the line of the property not taken. Where in the exercise of the power of eminent domain a highway right-of-way is condemned it would be illogical to assume that the whole parcel or strip of land condemned would not be used as a right-of-way.
The consequential damages awarded the defendants were to compensate them for all damages to the parts of the property not taken, caused by the prudent and proper preparation of the right-of-way as a highway. "The assessment of compensation for land taken for a railway covers all damages, whether foreseen or not, and whether estimated or not, which result from a proper construction of the road." Gilbert v. Savannah, Griffin & North Alabama Railroad, 69 Ga. 396, 399. The case of Talcott Bros. v. City of Des Moines, 134 Ia. 113 (109 N. W. 311) holds: "Within our view the reasoning in Callender v. Marsh, supra, and approved in Creal v. Keokuk, to the effect that the grant to the city, whether by dedication, by condemnation, or purchase, carried with it the right to injure, if this need be in reason, the abutting property in making such improvements as the necessities of public travel should reasonably require, is unanswerable. And, indeed, in no one of the cases holding to the liability doctrine was there a serious attempt made to answer it." A similar holding is found in Hall v. Delaware, L. & W. R. Co., 270 Pa. 468 (113 A. 669, 21 A. L. R. 1128). "Everyone knows that land thus taken is but part of a general improvement, and that the railroad company cannot be expected to run its tracks 'up hill and down dale,' as it would have to do if they were laid on the natural surface of the ground in this section of the country, especially in the hilly regions of Lackawanna county, where plaintiffs' land is situated. Hence, every property owner whose land is taken is bound to know that, if it is above the grade then or thereafter adopted by the railroad company, it will be cut down until it reaches the grade, and, if elsewhere on the line the natural surface of the ground is below the adopted grade, the hollow will be filled up accordingly."
The defendant must have been aware when claiming consequential damages that the right-of-way might and probably would be cut down and graded up to their property line in order to conform with the general lines and contours of the highway to be constructed.
Hence, the loss of lateral support for that part of the property not taken was one of the elements of consequential damages that should have been anticipated by the parties--a damage so normally expected to result from the nature and purpose of putting the right-of-way to the use for which it was taken.
HAWKINS, Justice, dissenting. The plaintiff's original petition prayed: "That the court declare the rights of all the parties hereto with reference to the completion of the demolition of the building on the Expressway side of the new property lines; and the clearing of the right-of-way for the completion of said Expressway; and the performance of such duties laid upon, and the exercise of such rights as may be declared to be vested in, petitioner with respect to the matters set forth herein." Without reaching the question of whether the cross-action states a good cause of action against the Highway Department for the damaging of private property for a public purpose, I dissent from the ruling in the 3rd division of the opinion that the matters therein referred to are not germane to the plaintiff's petition, and from the affirmance of that judgment. Spears v. Scott, 111 Ga. 745 (36 S. E. 950); Verginadis v. Atlanta Milling Co., 173 Ga. 626 (1) (160 S. E. 800); Travelers Indemnity Co. v. Callaway, 215 Ga. 684 (113 S. E 2d 136).
I am authorized to say that Mr. Chief Justice Duckworth and Mr. Presiding Justice Head concur in this dissent.
Eugene Cook, Attorney-General, Carter Goode, Assistant Attorney-General, contra.
Houston White, for plaintiffs in error.
ARGUED JUNE 14, 1960 -- DECIDED JULY 12, 1960 -- REHEARING DENIED JULY 25, 1960 AND JULY 29, 1960.
Saturday May 23 00:27 EDT

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