Andrus v. State Highway Dept., 36113
| Decision Date | 04 April 1956 |
| Docket Number | No. 1,No. 36113,36113,1 |
| Citation | 93 S.E.2d 174,93 Ga.App. 827 |
| Court | Georgia Court of Appeals |
| Parties | C. A. ANDRUS et al. v. STATE HIGHWAY DEPARTMENT |
Syllabus by the Court
The trial judge erred in denying the motion for a new trial.
The State Highway Department of Georgia instituted proceedings to condemn and acquire a portion of a tract of land, owned by C. A. Andrus, for the purpose of constructing an exit road to an expressway. Assessors were appointed in the manner provided by law, and made an award of $27,000 for the value of the land and easements taken and for consequential damages. Both Andrus and the State Highway Department appealed from the award, and on trial of the appeal the jury returned a verdict in favor of Andrus for $11,000. Andrus filed a motion for a new trial which was denied. From this ruling Andrus excepted.
William G. Grant, Robert W. Spears, Atlanta, for plaintiff in error.
Durwood T. Pye, Harold Sheats, Paul H. Anderson, Atlanta, for defendant in error.
1. Special grounds 4, 5, 6, 7, and 8 insist that the trial judge erred in permitting the condemner to introduce in evidence opinions of witnesses to the effect that the condemnee's property had benefited and enhanced in value as a result of the construction, by the condemner, of an expressway which did not touch any part of the condemnee's property and was located some thousand or more feet therefrom. These grounds are without merit because the exit road did cross the property of the condemnee. The exit road being a part of the 4-lane expressway is the same thing and incapable of separation therefrom. But for the entrance and exit roads to the main expressway, it would be incapable of use. The trial judge did not err in admitting the evidence objected to.
2. Special ground 9 excepts to the following charge: 'Now, the law provides that the Highway Department has the burden of proof to show you by a legal preponderance of the evidence that the allegations which it makes in its petition are true, except, of course, where such allegations may have been admitted by the defendant, Carl A. Andrus, here in open court as the case proceeded before you, and those, of course, you will accept without further proof.' The trial judge gave the jury no other instructions as to the burden of proof in this action. When a trial judge undertakes to charge the law on a subject, he must charge all the law on the subject which is material or applicable to the case. Rouse v. State, 2 Ga.App. 184, 58 S.E. 416; Harper v. State, 17 Ga.App. 561, 87 S.E. 808; Williams v. State, 25 Ga.App. 193, 102 S.E. 875; Hinson v. Hooks, 27 Ga.App. 430, 108 S.E. 822. Upon the trial of an appeal from the award of the appraiser in a condemnation suit, the only issue is the amount of injury sustained by the condemnee. Georgia Power Co. v. Brooks, 207 Ga. 406(4), 62 S.E.2d 183. The burden of proof is upon the condemnor to establish by a preponderance of the evidence what amount of money constitutes a just and adequate compensation. Streyer v. Georgia S. & F. R. Co., 90 Ga. 56, 15 S.E. 637; State Highway Board of Georgia v....
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