Department of Transp. v. Gunnels, 70045
| Decision Date | 15 July 1985 |
| Docket Number | No. 70045,70045 |
| Parties | DEPARTMENT OF TRANSPORTATION v. GUNNELS. |
| Court | Georgia Court of Appeals |
Michael J. Bowers, Atty. Gen., James P. Googe, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, First Asst. Atty. Gen., Roland F. Matson, William C. Joy, Sr. Asst. Attys. General, Jack L. Park, Jr., Sp. Asst. Atty. Gen., for appellant.
Harvey J. Kennedy, Jr., Barnesville, for appellee.
Condemnation--Charge on Damages. Appellant-condemnor Department of Transportation (DOT) filed a declaration of taking as to a strip of land from a parcel belonging to appellee-condemnee, Gunnels. DOT contemporaneously paid into the registry of the court the amount of $1,265. Gunnels was dissatisfied with the amount of estimated compensation deposited. Accordingly, he filed a notice of appeal. The issues of the value of the strip taken and of the consequential damages to the remainder were tried before a jury. The jury returned a verdict for appellee in the amount of $13,000. DOT's motion for new trial was denied and it appeals enumerating five alleged errors. Held:
1. There are two elements of just and adequate compensation for a partial taking of property by condemnation: (1) the market value of the portion actually taken; and (2) the consequential damage, if any, to the remainder. In order to determine the total damages, a jury is required to follow a five-step procedure: (1) determine the fair market value of the entire tract of property before any part is taken; (2) the value of the partial portion taken considered as a part of the whole tract; (3) the value of the remaining tract but just before the taking; i.e., the value of the remainder as a part of the whole by subtracting the value of a part taken from the value of the entire property; (4) the market value of the remainder just after the taking, considering the negative impact of the separation of the part from the whole; and (5) the positive impact of the taking of the part upon the value of the remainder just after the taking. Obviously steps 4 and 5 dealing with consequential damages must be determined separately from steps 1, 2, and 3 inasmuch as actual value is determined separately from consequential damages which may be added to but cannot be deducted from the value of the part taken.
The trial court in the instant case gave the following jury instruction as to the measure of compensation for the first element: DOT asserts that this charge as to the measure of compensation for the first element erroneously allows a condemnee in a partial taking to recover the same amount as consequential damages, the second element, and thus twice.
As noted above, in a partial taking condemnation proceeding, the first element of compensation is the market value of the property actually taken. To arrive at the amount of compensation for the part actually taken, the contested charge instructed the jury to determine the difference between the market value of the "whole lot" immediately before and after the taking of a part thereof.
The contested charge is based upon language which appears in State Hwy. Bd. v. Bridges, 60 Ga.App. 240, 241(2), 3 S.E.2d 907. In Elliott v. Fulton County, 220 Ga. 377, 381, 139 S.E.2d 312, our Supreme Court determined that Bridges enunciated "a correct rule." The Bridges case, supra, in discussing a workable rule concerning the value element held the measure of damages for the part actually taken (not consequential damages to the remainder) was to determine the difference between the market value of the whole lot just before the taking and the market value of the whole lot immediately after the taking. Inasmuch as the "whole" lot after the taking cannot include that which has been separated, the words "whole lot" after taking must mean the whole of the remainder, not considering consequential damages.
In Elliott v. Fulton County, supra, the Supreme Court was considering the charge as to value given in that case (Elliott ) as compared with the charge as to value in the Bridges case. The Supreme Court clearly differentiated the value determination for the part taken from the consequential damages and concluded that as to the charge dealing with the value of the part taken, the Bridges charge was correct and could have been applied correctly in the Elliott case. This dichotomy in the Elliott case was recognized and applied in Wright v. MARTA, 248 Ga. 372, 283 S.E.2d 466. The Supreme Court in Wright criticized a charge on consequential damage in Wright which was based upon obiter dicta in the Bridges charge dealing with consequential damages that authorized the jury to determine consequential damage to the remainder of the property by comparing the difference between the market value of the remainder before any part is taken (and before improvements) with the market value of the remainder after separation but after improvements are made. Consequential damages are limited to those that occur as a result of and at the time of the taking and before improvements are made. In Wright, supra, the Supreme Court separated that part of the Elliott case dealing with the value charge from and expressly overruled the obiter dicta pertaining to the charge on consequential damages while declining to consider and thus declining inferentially to overrule the test set forth in Bridges for the determination of value of the parcel taken (60 Ga.App. fn. 9, p. 376, 3 S.E.2d 907). Therefore, still extant and binding as authority upon us is the approval of the value charge in Bridges by the Elliott opinion.
In the Elliott opinion (220 Ga. p. 379, 139 S.E.2d 312), it was pointed out correctly that the removal and isolated consideration of a brief excerpt of a charge can do an injustice to the meaning and clarity of the excerpt when considered in isolation and not in the context of the entire charge on that subject; citing numerous authorities in support. In this case the trial court, not once but twice, informed the jury that the measure of damages for the taking of the part less than the whole was represented by the fair market value of the property interest taken at the time of the actual taking and more specifically being the difference between the market value of the whole lot just before the taking and the market value of the whole lot immediately after the taking (which we conclude can mean only the whole remainder inasmuch as the "whole lot after the taking" perforce cannot include something that is no longer present). Thus taken in context, the charge in this case as to value still represents the correct rule in this or any condemnation case. Wright, supra; Bridges, supra.
While the language of Bridges setting forth the proper criteria for determining value of the property taken in condemnation may be inartful, this court can do no more than point out the inexactness of the language and its potential for confusion. We have neither the right nor power to disapprove a holding in a case that on the very point involved expressly has been approved by our Supreme Court in Elliott v. Fulton County, supra. See State Hwy. Dept. v. Thompson, 112 Ga.App. 488, 145 S.E.2d 784.
2. While that portion of the charge in this case that allows the jury to establish consequential damages upon a fair market value determined after improvements have been made is erroneous as pointed out in the Wright case, the error is actually beneficial to the appellant, DOT, and furnishes no ground for reversal of this case. See Pilkenton v. Eubanks, 139 Ga.App. 673, 675, 229 S.E.2d 146.
3. Contrary to DOT's assertion that there was no basis for the admission of expert testimony dealing with the before and after value of the parcel taken nor any credible basis for the consequential damages, we find at least evidence of a minimal quantity to justify its admission and consideration by the jury. One witness initially included personal property in the basis of his value opinion but subsequently deleted that from his basis and made clear that his opinion was based solely on replacement and not comparables. Likewise, the second expert for Gunnels was specific as to value on the parcel taken and he likewise used a replacement approach, giving reasons therefor, as to consequential damages.
All evidence should be admitted as of course unless a valid objection is interposed, the burden being upon the objecting party to state at the time some good and specific reason why it should not be admitted. See Reid v. State, 129 Ga.App. 660, 663, 200 S.E.2d 456. Where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. Lovejoy v. Tidwell, 212 Ga. 750, 751, 95 S.E.2d 784); Cravey v. J.S. Gainer &c. Co., 128 Ga.App. 465(4), 197 S.E.2d 171. Any evidence is relevant which tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue is relevant. See Allen v. State, 137 Ga.App. 755, 756, 224 S.E.2d 834. Applying these tests to the expert testimony offered by Gunnels, we find no error either in the admission of their opinion testimony nor the court's refusal to strike their testimony once admitted.
4. DOT enumerates as error the giving of a charge whereby the trial court attempted to instruct the jury, in essence, that DOT's estimate of just and adequate compensation contained in the declaration of taking was not competent evidence and should not be considered. DOT's assertion is that, as worded, the instruction could have been understood as also...
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