Ga. S. & F. R. Co v. Small

• Decision Date: 08 July 1891
• Citation: 13 S.E. 515,87 Ga. 355
• Parties: Georgia S. & F. R. Co. v. Small et al.
• Court: Georgia Supreme Court

13 S.E. 515

87 Ga. 355

Georgia S. & F. R. Co.

v.Small et al.

Supreme Court of Georgia.

July 8, 1891.

Eminent Domain — Failure to Tender Compensation—Appeal.

There being no tender made by the company on the basis of the first verdict or award in the condemnation proceedings, there was no taking by the company for public use on that basis, and it was not error on the trial of an appeal to admit evidence of the value of the property at the time of the appeal trial, and to instruct the jury to assess compensation accordingly.

(Syllabus by the Court.)

Error from superior court, Bibb county;

A. L. Miller, Judge.

Gustin, Guerry & Hall and Dessan & Bartlett, for plaintiff in error.

R. W. Paterson and Roht. Hodges, for defendants in error.

Simmons, J. This bill of exceptions recites " that, during the April term of the superior court of Bibb county, there came on to be heard a certain cause, wherein A. B. Small, trustee, was complainant, and the Georgia Southern & Florida Railroad Company was defendant, the same being an action to enjoin the said railroad company from the further prosecution of condemnation proceedings to condemn certain lands in the city of Macon belonging to said complainant, which condemnation proceedings had been instituted under the charter of said railroad company; and also the case of the Georgia Southern & Florida Railroad Company v. A. B. Small, trustee, said last-mentioned case being a statutory proceeding to condemn the property of said Small, trustee, for the use of said railroad company, and then and there pending upon appeal from the verdict of the jury in said condemnation proceedings; both of which cases were by the order of the court consolidated and tried together; and, both parties having announced ready in both cases, a jury was impaneled to try the same." The bill of exceptions then goes on to recite that, pending the trial, the court allowed certain witnesses to testify as to the value of the property at the time of the trial. This was objected to upon the ground that the testimony sought to be elicited was illegal, for the reason that the value of the property to be submitted to the jury was the value at the time of the condemnation proceedings in July of the preceding year and not its value at the time of the pending trial, (May, 1890;) which objection was overruled by the court, and the witnesses allowed to answer the questious. The company excepted, and assigned error thereon. The judge charged the jury as follows: "The sole issue for the jury, on this branch of the case, is to determine the present value of the...