Department of Transp. v. Pilgrim, 69739
| Decision Date | 09 July 1985 |
| Docket Number | No. 69739,69739 |
| Citation | 175 Ga.App. 576,333 S.E.2d 866 |
| Parties | DEPARTMENT OF TRANSPORTATION v. PILGRIM et al. |
| Court | Georgia Court of Appeals |
J. Thomas Whelchel, Brunswick, for appellant.
Michael Perry, Charles C. Smith, Jr., St. Marys, for appellees.
This appeal resulted from a condemnation proceeding under OCGA § 32-3-4 et seq. brought by the Department of Transportation (DOT). The condemnees were five individual co-owners of the land in question and two banks, holders of security interests thereon; the latter are not concerned with this appeal.
In 1978 the individual condemnees purchased the somewhat triangular tract of land, consisting of approximately 30 acres situated at the intersection of Georgia Highway Spur 40 and the Colerain-St. Mary's Road. The property originally had 1,657 feet of frontage on Spur 40. The condemnees obtained a re-zoning to commercial, to a depth of 500 feet measured from Spur 40. The rest of the property remained zoned residential. In 1979 two parcels at the point of the triangle on Spur 40 were sold, leaving approximately 1,335 feet of commercial frontage.
In December 1982, DOT filed a declaration of taking of 624.85 (hereinafter 625) linear feet of access right-of-way along the Spur 40 frontage. DOT planned to convert Spur 40 to a limited access highway and to fence 625 feet of its right-of-way to prevent any access by the condemnees to Spur 40 from that portion of their land. Condemnees are left with all their land but only 710 feet of commercial frontage on Spur 40.
As the trial court charged, without challenge, the sole issue presented concerns consequential damages to the remainder of the property. The dispute concerns the scope of such damages, that is, whether to measure the damage to only that portion of the commercial property behind the planned fence, or to measure the damage to the entire commercial parcel, including the latter, of course, would include 710 linear feet of direct access to Spur 40. The former would have none. It would have access to Spur 40 only indirectly, through the unfenced portions of the land.
DOT estimated $29,200 as just and adequate compensation for the taking of the access rights and deposited that sum into court. The condemnees, dissatisfied, sought a jury trial on compensation. It returned a verdict of $110,800 and DOT appeals the resulting judgment. Held:
1. DOT asserts as error the failure to give certain requests to charge. However, DOT's amended notice of appeal directed the omission from the appellate record of both parties' requests to charge. Under Brown v. Frachiseur, 247 Ga. 463, 464, 277 S.E.2d 16 (1981), an appellate court is not required to prosecute an appeal on behalf of appellant by insuring that a sufficient record is available for determination of the issues. Nevertheless, we have obtained the requests to charge from the lower court. See OCGA § 5-6-48(d). The reasons we do so here is because it may have been an inadvertent omission by the appellant, both parties argue the merits of at least some of the requests, and appellees do not dispute that the requests were in fact made.
(a) DOT presented no argument concerning enumerations of error 4, 5 and 7 (which deal with an alleged erroneous instruction and the failure to give written requests 9 and 14). They are deemed abandoned. Court of Appeals Rule 15(c)(2); Trowell v. Weston, 154 Ga.App. 572(2), 269 S.E.2d 74 (1980).
(b) Enumerations of error 8 and 9 complain of the failure to charge OCGA §§ 32-6-131 and 32-6-133.
There was no written requests to charge these code sections. Slaughter v. Linder, 122 Ga.App. 144(2a), 176 S.E.2d 450 (1970); Clounts v. Scholle, 172 Ga.App. 721, 723(3), 324 S.E.2d 496 (1984); OCGA §§ 5-5-24(b).
(c) Enumeration of error 6 complains of the failure to give the second sentence of the following request to charge: Both sentences are quotes from cases: the first is found in MARTA v. Datry, 235 Ga. 568, 575, 220 S.E.2d 905 (1975); the second in Brock v. Dept. of Transp., 151 Ga.App. 905(1), 262 S.E.2d 156 (1979). Both were included in a charge which was approved in Brock where access rights were taken.
In Panos v. Dept. of Transp., 162 Ga.App. 53, 56 (11), 290 S.E.2d 295 (1982), the second sentence was again approved as a correct statement of law to the jury and this court held the instruction "is applicable in cases where the property owner had utilized his entire street boundary as access prior to the taking."
Thus, we may conclude that the written request was pertinent and correct, but that does not end our consideration of this issue. "It is now well settled that, simply because a request to charge ... is apt, correct and pertinent, it is not necessarily error to fail to charge it, but the test is whether the court substantially covered the principles enbodied therein.... or whether it was 'sufficiently or substantially covered by the general charge.' " Seaboard Coast Line R. Co. v. Thomas, 125 Ga.App. 716, 718(1), 188 S.E.2d 891 (1972).
A careful review of the entire charge reveals that although many applicable principles relative to access rights were charged, there was no reference to the proposition that the landowner was not entitled to access at all points along the boundary even though previously such access was available. In view of the way this case was presented whereby it was shown that access to a 7-acre portion of the whole tract was cut off, the failure to instruct the jury regarding this principle where the entire access was not cut off could only be harmful to condemnor's cause.
Therefore, it was error to fail to give the second sentence of the requested instruction and a new trial must be granted.
2. Condemnees introduced over objection exhibit 10, a plat and plans for a shopping center, the frontage access to which was the subject of the condemnation proceedings. The trial court admitted the exhibit in conjunction with a jury instruction that it was "only illustrative of the possible future use to which this property could have been put ... that this exhibit is merely a plan and ... there has been no construction on the property and the condemnees are submitting this document only to show the possible future use and market value of the property."
In its first enumeration of error, DOT contends that a plat of the property showing a non-existent situation is inadmissible under Tift v. State Hwy. Dept., 99 Ga.App. 387, 393, 108 S.E.2d 724 (1959) which held that a plat of a subdivision which had not actually been subdivided was inadmissible because it presented an untruthful picture as to the situation which actually existed.
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