Bowers v. Fulton County

• Decision Date: 07 January 1966
• Docket Number: No. 23212,23212
• Parties: , 20 A.L.R.3d 1066 Caleb J. BOWERS v. FULTON COUNTY.
• Court: Georgia Supreme Court

Page 884

146 S.E.2d 884

221 Ga. 731, 20 A.L.R.3d 1066

Caleb J. BOWERS v. FULTON COUNTY.

No. 23212.

Supreme Court of Georgia.

Jan. 7, 1966.

Rehearing Denied Feb. 2, 1966.

Syllabus by the Court

1. Where the meaning of a constitutional provision is uncertain or opinions of the courts have cast a shadow upon its meaning, there is a necessity that this court construe such provision.

2. Art. I, Sec. III, Par. I, of the Constitution (Code Ann. § 2-301) is susceptible to no construction except the condemnee is entitled to be compensated for all damage done to his property and expenses caused by the condemnation proceedings. Such damages and expenses are separate and distinct items from the amount to which he is entitled to recover as the actual value of his building.

3. The Constitution provides that just and adequate compensation be paid for property taken or damaged. Hence, in this case where the pleadings and evidence showed the condemnee sustained damages and incurred expenses incident to the removal of his business, it was error to charge only with regard to property taken.

4. Where requested instructions are not entirely correct, the trial court properly refuses to give them in charge to the jury.

5, 6. Fair market value alone is not in every case the proper criterion for determining just and adequate compensation.

7. The trial judge did not err in excluding from the evidence an incomplete sale contract.

8. Definitions of fair market value when given in charge to the jury should be complete and correct.

9. In fixing the value of the property taken the charge should not have referred to the willingness or unwillingness of the condemnee to sell.

10. Where evidence brought out upon cross-examination is pertinent to the issues of the case, tends to establish the contentions of the party cross examining the witness and goes to the weight and credit of the witness, it should be admitted.

11. That evidence is completely refuted by proof offered by the opposite party is not a reason to exclude it.

12. A charge on the burden of proof was correct.

13. A ground as to the verdict being inadequate will not be passed upon where on a new trial the issues and evidence will necessarily be different.

On June 1, 1964, Fulton County filed a petition to condemn in fee simple the entire tract of land belonging to Caleb J. Bowers, appellant here, which was divided into tract 1 and tract 2 in the description contained in the petition. The tracts were adjacent and, in reality, formed one tract of land. One portion, shown in an exhibit attached to the petition, fronted 50 feet on Lakewood Avenue, S. E., on the south, with a 207.3 foot depth on the 50 foot frontage the western side of the entire tract fronted 142 feet on Adams Street, which entered Lakewood Avenue one block from the intersection of Lakewood Avenue and Stewart Avenue, S. E., which two intersections were each two blocks from the Stewart-Lakewood Shopping Center. The north side of the property fronted 158 feet on the south side of Mobile Avenue which was parallel to Lakewood Avenue. Thus, the entire lot facing three streets had an area of 29,283 square feet. A modern office building was built thereon in March of 1961, in which Bowers carried on a bookkeeping and tax service for individuals and companies and also sold all forms of insurance to the general public. Facing Lakewood Avenue was a residence rented to a tenant by the month. The intersection of Mobile Avenue and Adams Street and the condemnee's office building was each visible from the Stewart-Lakewood Shopping Center. This entire tract was taken as of July 1, 1964. At the hearing before the special master, Attorney Edward Dorsey, on June 17, 18, 22 and 25, 1964, Bowers was awarded $135,000.

On appeal a jury trial was had on November 30 through December 4, 1964. One of the issues in the case was whether the premises taken in the condemnation proceeding had a unique value to the condemnee because he operated a very successful business on the premises at the time they were taken. Another issue made by the pleadings and evidence was whether the condemnee was entitled to compensation for the damage to his business on account of being compelled to remove the same to another location and the expenses incident to the removal. On both of these issues one of the principal contentions was that in the vicinity where the condemnee had established his business there was other comparable property. On this issue, the condemnee submitted evidence that there was no property comparable to that taken in the same business area, while the condemnor submitted proof that the condemnee had acquired comparable property, prior to the institution of the proceedings, which the condemnor insisted was favorably enough located and close enough to the premises taken to furnished a location as well adapted to the use as the property taken. The witness's testimony was somewhat vague as to the distance between the two locations and as to whether the property the condemnee had purchased was as well suited for the conduct of his business. The condemnee introduced an ordinance showing the property he had acquired was not, at the time the condemnation was begun or for several months subsequent to the taking, zoned for business use but was zoned only for residential purposes. He also offered evidence that upon the removal of his business to the new location his patronage greatly diminished, resulting in the actual loss in money to him. He submitted proof of the expenses incurred in moving his business and equipment.

The jury returned a verdict for the condemnee in the amount of $70,000. The condemnee filed a motion for new trial and later amended by adding 16 special grounds in which he contended that the verdict was too small on account of mistakes of law set forth in the special grounds.

The motion for new trial as amended was overruled on each and every ground on September 3, 1965, and appeal was taken therefrom. The enumeration of errors specifies error on each ground of the amended motion for new trial with the exception of special ground 16. We now review the errors therein specified.

Houston White, Sr., Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., E. J. Summerour, Asst. Atty. Gen., Atlanta, for appellee.

Troutman, Sams, Schroder & Lockerman, T. M. Smith, King & Spalding, R. Byron Attridge, John V. Skinner, Jr., Charles M. Kidd, Atlanta, for party at interest not party to record. QUILLIAN, Justice.

1. Construction of Art. I, Sec. III, Par. I of the Georgia Constitution as amended in 1960 (Code Ann. § 2-301) is invoked in the present case. 'The words, 'construction of the Constitution,' * * * contemplate construction where the meaning of some provision of the Constitution is directly in question, and is doubtful by force of its own terms or under the decisions of the Supreme Court of the United States or of the Supreme Court of Georgia.' Gulf Paving Co. v. City of Atlanta, 149 Ga. 114, 117, 99 S.E. 374, 375. The constitutional provision here dealt with is plain and explicit, but many reported cases have cast shadows upon its meaning. The Supreme Court has jurisdiction, this not being a case where mere application of a constitutional provision is involved but one where construction of the provision above mentioned is necessary.

2. The enumeration of errors contains exceptions to the overruling of the several grounds of the condemnee's amended motion for new trial. Grounds 5, 6 and 7 of the motion complain of the refusal of the trial judge to give to the jury charges requested in writing by the condemnee. These charges read, respectively:

(5) 'I charge you that the Constitution of Georgia provides that private property shall not be taken, or damages, for public purposes without just and adequate compensation being first paid. It is for the jury to determine in this case what is the amount of just and adequate compensation due to the condemnee, C. J. Bowers. In making this determination I charge you that one of the elements of just and adequate compensation in a case where an owner, having the fee simple title to the property sought to be taken by a political subdivision of this state, operating a business thereon, but is required as a result of said taking to remove his business therefrom, and as a result of said removal, is directly damaged with respect to his business, by the loss of profits therefrom, said owner is entitled to recover by way of damages such loss of profits, as a separate item of damages additional to the value of the property taken from him in this eminent domain proceeding. Such item of damages, if you find the condemnee has been damaged with respect to same, is a portion of the just and adequate compensation due to the condemnee by a proper and lawful construction of said constitutional provision of this state.'

(6) 'I charge you that the Constitution of Georgia provides that private property shall not be taken, or damaged, for public purposes without just and adequate compensation being first paid. As I have charged you, it is for the jury to determine in this case what is the amount of just and adequate compensation due to the condemnee, C. J. Bowers. In making this determination I charge you that one of the elements of just and adequate compensation in a case where an owner, having the fee simple title to the property sought to be taken by a political subdivision of this state, operating a business thereon, but is required as a result of said taking to remove his business therefrom, and as a result of said removal is directly damaged with respect to his business by the loss of customers and sales to customers, said owner is entitled to recover by way of damages, such loss, injury to, or diminution of business, as you may determine from the evidence as having been reasonably suffered by the owner of said business, as a separate item of damages...