DeKalb County v. Cowan, 58268
| Decision Date | 26 November 1979 |
| Docket Number | No. 58268,58268 |
| Citation | 261 S.E.2d 478,151 Ga.App. 753 |
| Parties | DeKALB COUNTY v. COWAN. |
| Court | Georgia Court of Appeals |
George P. Dillard, Gail C. Flake, Decatur, for appellant.
James Garland Peek, J. Corbett Peek, Jr., Atlanta, for appellee.
DeKalb County initiated this action to acquire a strip of land owned by the condemnee, along with certain temporary and permanent easements, for road improvement purposes. The property was part of a larger parcel of land on which the condemnee operated an antique business. The condemnee objected to the amount of compensation paid into court by the county, alleging that the temporary and permanent easements taken resulted temporarily in a complete loss of access to the property, which in turn resulted in the destruction of his business. The county appeals following a jury verdict favorable to the condemnee. Held :
1. The enumerations of error attacking the sufficiency of the evidence are without merit. There was evidence to support a finding that the condemnee had experienced a temporary total loss of access to his property as a direct result of the takings and that as a result he was forced to close down his business. This evidence did not, as suggested by the county, show merely a temporary inconvenience caused by the construction process. The jury was authorized to find from the evidence that as a necessary result of the taking and the construction of the street improvements the condemnee suffered a total temporary loss of use of his property, resulting in the destruction of his established business. This was an item of damage for which he was entitled to be compensated. Whipple v. County of Houston, 214 Ga. 532(1), 105 S.E.2d 898 (1958). See generally Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966).
2. The fourth enumeration of error complains of the admission of a photograph showing a barricade used during the construction of the street improvements. Although the photograph was identified and discussed by at least one witness, we find no indication in the transcript that it was actually tendered or received into evidence. Consequently, this enumeration of error is without merit.
3. A duly qualified expert may state his opinion as to value without the necessity of stating the facts on which his opinion is based. Rowe v. City Council of Augusta, 119 Ga.App. 571(1), 168 S.E.2d 209 (1969); Housing Authority v. Starcher, 149 Ga.App. 402(3), 254 S.E.2d 515 (1979). Where the expert testifies that his opinion is based in part on a personal inspection of the property, it is no ground for objection that his inspection was made subsequent to the taking. Howard v. State Hwy. Dept., 117 Ga.App. 280(2), 160 S.E.2d 204 (1968); State Hwy. Dept. v. Peters, 121 Ga.App. 167(1), 169, 173 S.E.2d 253 (1970). See generally Code § 38-1710. The fifth enumeration of error is without merit.
4. It was not error to allow expert testimony as to the rental value of the property over the county's objection that the figure was based on the rental value of other property which was not shown to be comparable. The comparability of the other property was a matter going to the weight to be given the testimony, not its admissibility. See Hollywood etc., Church v. State Hwy. Dept., 114 Ga.App. 98(4), 150 S.E.2d 271 (1966); Merritt v. Dept. of Transp., 147 Ga.App. 316(3), 248 S.E.2d 689 (1978), revd. on other grounds; Dept. of Transp. v. Merritt, 243 Ga. 52, 252 S.E.2d 508 (1979). The testimony was relevant on the issue of consequential damages for the temporary loss of use of the property.
5. No error appears with regard to the county's objection to the condemnee's statement that he had lost access to Old Stone Mountain Road, since the transcript reveals that the objection was sustained.
6. There was no error in allowing condemnee's Exhibit D-22 into evidence, since the county made no objection at the time the exhibit was tendered and received into evidence.
7. There was some evidence tending to show that the property had a unique suitability, due to its location, for the purpose to which it was being put, i. e., the operation of an antique store. Therefore, it was not error to instruct the jury that they were not restricted to market value in determining just and adequate compensation. ...
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