Civils v. Fulton County, 40105
| Decision Date | 15 November 1963 |
| Docket Number | No. 40105,No. 3,40105,3 |
| Citation | 134 S.E.2d 453,108 Ga.App. 793 |
| Parties | James E. CIVILS v. FULTON COUNTY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. No constitutional question was presented within the meaning of the Constitution, Art. VI, Sec. II, Par. IV (Code Ann. § 2-3704).
2. (a) In a condemnation case where the whole parcel is to be taken from the one owner in the one condemnation proceeding, the parcel may not be subdivided after the commencing of the suit so as to invoke the benefit of a possible enhancement of value of the divided portions because of the general knowledge which might be gained from the mere filing of the action that the whole may be taken and improved.
(b) Certain instructions regarding zoning restrictions as given by the trial judge in his charge to the jury are approved.
3. The trial judge properly refused the written request to charge as the request was not a correct pronouncement of the law.
On May 18, 1961, Fulton County filed suit, under the provisions of Ga.L.1957, p. 387 et seq. to acquire some 8.011 acres of land in the City of College Park owned by James E. Civils for construction of a limited-access highway and for other purposes 'in the best interests of the public.' The county's right to condemn the land was not questioned. The property was bounded in part by public streets and in part adjoined the Atlanta Municipal Airport.
Both the condemnor and the condemnee appealed the special master's award to the Superior Court. The case was tried before a jury on May 17, 1962, which awarded Civils the sum of $39,167 as compensation. The trial judge entered judgment accordingly. Civils filed a motion for new trial and by amendment added four special grounds, three of which object to the judge's charge to the jury on the effect of College Park's zoning on the uses to which the property could be put, and one objecting to the judge's refusal to charge a written requested charge to the effect that the city's zoning was inapplicable. The instructions of the trial court contended to be erroneous read as follows:
'At the same time, Gentlemen, I charge you that while you may, in determining the value of the property condemned, consider all uses to which it might reasonably be put, the mere possibility, if you should find from the evidence that such existed, that it might in the future have been put to some use not permitted under the applicable zoning ordinance affecting the property at the time of the taking, that is on June 8, 1961, is not enough to authorize you to consider the effect of such a possibility in determining the value of the land.
Civils' property was roughly rectangular in shape. The proposed interstate highway was projected through only a part of it so that the remainder appeared triangular in shape. The triangular shaped portion was bounded only by the proposed interstate highway and the Municipal Airport of Atlanta.
The trial judge overruled Civils' motion for new trial, and it is to this judgment that exceptions are brought.
W. S. Northcutt, Northcutt & Edwards, Atlanta, for plaintiff in error.
Harold Sheats, George H. Gillon, Paul H. Anderson, Atlanta, for defendant in error.
1. This appeal was first brought to the Supreme Court where, by a full-bench decision, it was held that, 'The contention in a case that portions of a charge of the court were erroneous for stated reasons and thus deprived the movant of due process of law and equal protection of the laws in violation of stated provisions of the Constitution does not make it one of those cases 'that involve the construction of the Constitution of the State of Georgia' within the meaning of the Constitution, Art. VI, Sec. II, Par. IV (Code Ann. § 2-3704).' Civils v. Fulton County, 218 Ga. 705, 130 S.E.2d 220.
2. The forty-plus pages covering special grounds 4, 5, and 6 of the plaintiff in error's motion for new trial involve only two essential contentions for determination although, as to be expected from so much verbiage, there are some variations on the themes. As we view the case, both the essentials and the variations are controlled by the holdings which we apply to the theories upon which they are all founded. These two basic theories arise from the error asserted on those portions of the trial court's instructions regarding the manner in which the jury would be authorized to treat the effect of the zoning regulations of the City of College Park which instructions are quoted in full in the preceding factual summary of the case.
(a) The first contention is that these instructions restricted the jury's consideration, in determining value of the property taken, of possible uses to which the triangular portion of the property condemned could be applied.
The fallacy of this contention is that the condemnee seeks to sever a portion of the property from the whole parcel condemned and to theorize on the enhancement in value which the severed portion gained by reason of the taking of the remainder. This supposition cannot be sanctioned.
The whole parcel to be taken from the one owner in this one condemnation proceeding may not be subdivided after the commencing of the suit so as to invoke the benefit of a possible enhancement of value of the divided portions because of the general knowledge, which might be gained from gained from the mere filing of the action, that the whole may be taken for an improvement. Such a result is not within the purview of the rule considered in Hard v. Housing Authority of the City of Atlanta, 219 Ga. 74, 132 S.E.2d 25. Neither Hard nor Young v. Harrison, 17 Ga. 30(1), nor Gate City Terminal Co. v. Thrower, 136 Ga. 456, 71 S.E. 903, nor Housing Authority of the City of Marietta v. York, 106 Ga.App. 41, 126 S.E.2d 246, implies this possibility or goes so far. The factual situation here is inversely different from that in State Highway Board v. Bridges, 60 Ga.App. 240, 3 S.E.2d 907, where a small strip of land of one owner was not included in a condemnation although the ruling here is in complete harmony...
To continue reading
Request your trial
-
Evans v. Dep't of Transp.
...276–277, 577 S.E.2d 769 (2003) ; Hall County v. Merritt, 233 Ga.App. 526, 527(1), 504 S.E.2d 754 (1998) ; Civils v. Fulton County, 108 Ga.App. 793, 797(2)(b), 134 S.E.2d 453 (1963). Hence, evidence regarding the City of Gordon's zoning ordinance, and the reasonable probability that a specia......
-
Gruber v. Fulton County
...Institutions v. Tallahassee Bank &c. Co., Fla.App., 108 So.2d 74; 4 Nichols, Eminent Domain, § 12.322 (3rd Ed.). Cf. Civils v. Fulton County, 108 Ga.App. 793, 134 S.E.2d 453. Mr. Gruber testified that he went to the Fulton-Atlanta Planning Board to discuss the matter of rezoning and was the......
-
Klumok v. State Highway Dept.
...authorized the court's instructions to the jury allowing them to consider the effect of possible rezoning. Civils v. Fulton County, 108 Ga.App. 793, 796, 134 S.E.2d 453. 2. 'The Legislature cannot bestow upon one of its boards the right to take or damage private property for public use with......
-
Adc Invs., LLC v. Dep't of Transp.
...769 (2003) (relying on Colonial Pipeline Co. v. Williams, 206 Ga.App. 303, 304, 425 S.E.2d 380 (1992) and Civils v. Fulton County, 108 Ga.App. 793, 797, 134 S.E.2d 453 (1963)). See also Dept. of Transp. v. Jordan, 300 Ga.App. 104, 105–106, 684 S.E.2d 141 (2009). Moreover, when considering a......