Potts v. State Highway Department , 120 Ga. App. 164 ( 1969 )

120 Ga. App. 164 (1969) 169 S.E.2d 678

POTTS, Executrix
v.
STATE HIGHWAY DEPARTMENT.

44314.

Court of Appeals of Georgia.

Argued March 4, 1969. Decided July 15, 1969. Rehearing Denied July 29, 1969.

Glover & Davis, J. L. Glover, Welborn B. Davis, Jr., for appellant.

Arthur K. Bolton, Attorney General, Richard L. Chambers, John H. Hicks, Assistant Attorneys General, Sanders, Mottola & Haugen, Charles Van S. Mottola, for appellee.

DEEN, Judge.

The sole question in this condemnation case, it having been stipulated that consequential damages to the land not taken were exceeded by consequential benefits, is whether the just and adequate compensation awarded the owner by the condemning authority taking land for a nonaccess or limited access highway includes compensation for the taking of the owner's easement of access to the highway being constructed. Appellants rely on State Hwy. Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557) and on Streyer v. Ga. S. & F. R. Co., 90 Ga. 56, 60 (15 S.E. 637), where it is said: "This easement is property in constitutional intent and is subject to taking just as the land itself."

However, in Klumok v. State Hwy. Dept., 119 Ga. App. 505 (167 SE2d 722), this court held that "this loss of access rights is merely an element of consequential damages to those portions of his land which are not taken." Under this ruling it was not error for the court to disallow evidence as as to the value of the loss of access to Interstate Highway 85 as an element of damage not included within the term consequential damages.

Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.