# Bowers v. Fulton County

> Supreme Court of Georgia · January 7, 1966 · 221 Ga. 731

URL: https://www.frixlaw.com/law-library/cases/9602472

## Case

- **Full name:** Bowers v. Fulton County
- **Court:** Supreme Court of Georgia
- **Decided:** January 7, 1966
- **Citations:** 221 Ga. 731; 146 S.E.2d 884; 20 A.L.R. 3d 1066; 1966 Ga. LEXIS 685
- **Precedential status:** Published
- **Opinion:** Dissent by Cook
- **Judges:** Cook, Mobley, Quillian
- **Cited by:** 105 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9602472

## How later opinions describe it (automated extraction)

- concluding that the Georgia Constitution forbids the uncompensated “taking or damaging . . . of any species of property,” including “things real and personal owned”
- noting that evidence of potential uses for property may he considered in determining the value of the real estate

## Opinion text

Cook, Justice,
dissenting from Divisions 2 and 3 of the opinion. In the opinion of the majority this court for the first time, so far as I am able to ascertain, has held that loss of profits from *745 a business and expenses of removal of a business caused by the condemnation of property can be recovered as separate items of damage in addition to the value of the property taken.
In Pause v. City of Atlanta, 98 Ga. 92 (4, 5), supra, where damages were claimed to a leasehold interest in property resulting from the building of a bridge by the city, this court held: “In such case, neither the profits of the business carried on upon the premises so leased, nor the cost of fixtures or other improvements placed therein, nor of articles purchased for the purpose of enabling the lessee to conduct such business, nor the diminution in value of such fixtures, improvements or articles as are removed by the lessee from the premises upon leaving the same, are recoverable as damages; but the increased value of the premises for rent in consequence of the putting in of such fixtures and improvements may be considered in computing the damages to the leasehold estate. On the trial of such a case, it is competent for the plaintiff to prove that the business in question was in fact profitable, not for the purpose of recovering any loss in profits, but solely to illustrate and throw light upon the value of the premises for rent.” This has been the law in Georgia since 1895.
The Pause case, and a number of other cases, are cited in the majority opinion and it is stated that the pronouncements in those cases were obiter dictum because they either did not involve the taking or directly damaging of the condemnee’s physical property by the condemnor, or no claim for damages was made on account of damage to the condemnee’s business or for expenses incurred by him, and that they did not require a construction of the Constitution, Art. I, Sec. Ill, Par. I (Code Ann. § 2-301). I can not agree with this view. This constitutional provision applies alike whether property is taken or damaged for public purposes.
In Brunswick & Western R. Co. v. Hardey & Co., 112 Ga. 604, 608 ( 37 SE 888 ), the Pause case was distinguished from the case under review and it was pointed out that in the Pause case the plaintiff did not sue to recover lost profits, but for injury to her leasehold estate and the court stated that “we do not think that the court in its decision intended to rule that certain injuries to business would not be actionable, although the realty may *746 have sustained no injury whatever.” This was not a holding that the Pause case was unsound or that the statements in it were obiter dictum. In Atlantic & Birmingham R. Co. v. McKnight, 125 Ga. 328, 334 ( 54 SE 148 ), this court stated that the Pause case was “recognized as binding authority,” and the Pause case has subsequently been cited and relied on as authority in numerous unanimous decisions of this court, including many recent cases.
The majority opinion contains a quotation from 18 Am. Jur. 787 , § 156, defining property for which compensation may be awarded in condemnation proceedings. In the same volume of that text, 18 Am. Jur. 900 , Eminent Domain, § 259, it is said: “Accordingly, it may be stated as a general rule that injury to business or loss of profits, or the inconvenience of carrying on business in a new location is not to be considered as an element of damages- in eminent domain proceedings in the absence of a statute expressly allowing such damages, even under a constitutional provision allowing just compensation for property taken, injured, or destroyed.” ■
It is my view that the rulings in Divisions 2 and 3 of the majority opinion incorrectly construe the constitutional provision concerning the taking or damaging of private property for public purposes. I therefore concur in the judgment of reversal, but dissent from the rulings in Divisions 2 and 3 of the opinion.
I am authorized to state that Mr. Justice Mobley concurs with me in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9602472. Public record. Not legal advice.