State Highway Department v. McClain , 216 Ga. 1 ( 1960 )

Hawkins, Justice,

concurring specially. I concur in the judgment rendered, for the reason that I do- not consider that the damages here sought to be recovered come within the protection of art. 1, sec. 3, par. 1 (Code § 2-301) of the State Constitution, in that there is neither a taking nor damaging of the plaintiff’s property for a public purpose; the plaintiff suffered no damage or injury different from that suffered by any other member of the public who customarily uses the highway referred to. As applied to that character of taking or damaging of private property, protected by the constitutional provision referred to, this statute would be unconstitutional, since the Constitution provides that for such taking or damaging just compensation must be first paid, and this statute would require that the property owner wait until the highway involved is opened for traffic before seeking a recovery.

I am authorized to say that Presiding Justice Head concurs in this special concurrence.