Department of Transp. v. Gunnels, 42632
Decision Date | 04 March 1986 |
Docket Number | No. 42632,42632 |
Citation | 340 S.E.2d 12,255 Ga. 495 |
Parties | DEPARTMENT OF TRANSPORTATION v. GUNNELS. |
Court | Georgia Supreme Court |
Michael J. Bowers, Atty. Gen., Jack L. Park, Jr., Special Asst. Atty. Gen., Park & Dabbs, Griffin, for Dept. of Transp.
Hawvey J. Kennedy, Jr., Barnesville, for James H. Gunnells, a/k/a Howell Gunnells.
This case involves a partial taking through the exercise of eminent domain by the Department of Transportation, and centers upon the court's charge to the jury relative to damage. We granted certiorari upon the following inquiry: Whether the jury charge as to value of the portion taken results in double recovery or is otherwise error. Department of Transportation v. Gunnels, 175 Ga.App. 632, 334 S.E.2d 197 (1985).
The facts in the case are fairly simple. The Department by declaration took a strip of land from a parcel belonging to Gunnels, who appealed to a jury. The trial court charged the jury partially as follows: Being dissatisfied with the verdict, the Department asserts that this charge erroneously allowed Gunnels, in a partial taking, to recover twice for the same thing--once as to the value of land actually taken, and secondly, as to consequential damages to the remainder. The Court of Appeals affirmed with two judges concurring specially, and one dissenting.
1. There is an inherent difficulty in the charge given by the trial court, which requires some address, notwithstanding that it appears to be based upon language appearing in State Hwy. Bd. v. Bridges, 60 Ga.App. 240, 241(2), 3 S.E.2d 907 (1939). See our holding in Elliott v. Fulton County, 220 Ga. 377, 381, 139 S.E.2d 312 (1964), which seems to approve the rule in Bridges.
The problem is, obviously, in the use of the term "whole lot" to refer both to a parcel of property undiminished by a taking, and to the same parcel "immediately after the taking." Logically, there is no "whole lot" after the taking, but only a remnant or remainder of what, before the condemnation, was vested in the owner.
In his special concurring opinion (concurring, as he felt bound by other authorities), Judge Carley observed as follows: 175 Ga.App. at 637-38, 334 S.E.2d 197.
2. In view of the logical impossibility of there being a "whole lot" both before and after the condemnation, we agree substantially with the views expressed by Judge Carley, and disapprove anything to the contrary found either in State Hwy. Bd. v. Bridges, supra, or Elliott v. Fulton County, supra.
3. Because the charge raises a substantial possibility that it might have been understood by the jury to authorize a double recovery, the case must be reversed, and a new trial held.
Judgment reversed.
All the Justices concur.
I concur in the opinion and in the judgment, and take this opportunity to present some additional considerations relative to the fixing of awards under our constitutional requirement.
1. Art. I, Sec. III, Par. I(a) of the Constitution of Georgia of 1983 provides: "Except as otherwise provided in this Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation first being paid." In Calhoun v. State Hwy. Dept., 223 Ga. 65, 153 S.E.2d 418 (1967), our court held: ...
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