Department of Transp. v. Worley, 57515
| Decision Date | 16 July 1979 |
| Docket Number | No. 57515,57515 |
| Citation | 258 S.E.2d 595,150 Ga.App. 768 |
| Parties | DEPARTMENT OF TRANSPORTATION v. WORLEY et al. |
| Court | Georgia Court of Appeals |
Warren Akin, Cartersville, for appellant.
Langford, Bailey & Overby, William P. Bailey, Calhoun, for appellees.
This is a condemnation case brought by the Georgia Department of Transportation to condemn 2.444 acres of land belonging to Roy Edgar Worley and others. However, the other interests in the land are not here involved. The condemnor sought by condemnation to acquire the fee simple title to the property for a limited access highway and with reference to an interchange at an intersection of Interstate Highway 75 and Georgia State Road 136 located in Gordon County. The highway was a limited access highway as provided for under Georgia Laws 1973, pages 1087, 1090, as amended. The proceeding was brought as required by a declaration of taking in order "to acquire the title, estate or interest" in the lands and to pay the sums estimated as just compensation therefor in accordance with applicable law (Code Ann. § 95A-605 (Ga.L.1973, pp. 947, 1010; 1974, pp. 1422, 1430; 1975, pp. 813, 814)). The sum of $15,300 was duly deposited with the clerk as estimated just and adequate compensation for the property described and taken, and an order of condemnation was issued taking the property in fee simple.
Condemnee appealed. A jury trial was held as to the value of the property, and a verdict was rendered in favor of the condemnee in the sum of $32,500. Whereupon the court entered judgment for this amount, less the amount heretofore paid into court, plus interest. In addition, the trial court, based upon evidence, found reasonable attorney fees in favor of the condemnee to be $1,750, plus interest and $264.85 in expenses. The condemnor moved for new trial which was amended and thereafter denied after a hearing. Condemnor appeals. Held :
1. Condemnor first argues and submits that the award of attorney fees and expenses as additional damage here is erroneous in view of the recent decision of the Supreme Court in DeKalb County v. Trustees, Decatur Lodge 1602, B. P. O. Elks, 242 Ga. 707, 251 S.E.2d 243, decided November 22, 1978. However, the case sub judice was tried on May 25 and 26, 1978, prior to that decision. Based upon the two recent decisions by this court, the same being Housing Authority of the City of Atlanta v. Southern R. Co., 150 Ga.App. 4, 256 S.E.2d 606 (1979); and Dept. of Transp. v. Kendricks, 150 Ga.App. 9, 256 S.E.2d 610 (1979), two separate divisions of the Court of Appeals have both held owners in condemnation cases have vested rights to just and adequate compensation which cannot be destroyed by applying the law existing as of the date of the appeal to a case that has already been tried. See Calhoun v. State Hwy. Dept., 223 Ga. 65(2), 153 S.E.2d 418. Accordingly, there is no merit in the condemnor's contention that the judgment should be reversed as to attorney fees and expenses as additional damage in the case sub judice.
2. During the trial the question arose as to whether the property taken would limit the access to the remainder of the property of the condemnee. Counsel for condemnor took the position that the remaining lands of the condemnee (7.012 acres) on the west side of the access of Frontage Road was not limited as to access to this road. The trial court ruled that the property taken by fee simple title as shown by the declaration of taking (which included "the right of way, easements and access rights, if any"), the order of taking, and the petition, was for limited access. Whereupon the court charged the jury the substance of Code Ann. § 95A-935 (Ga.L.1973, pp. 947, 1087) as to the definition of a limited-access road. It also charged the substance of Code § 95A-946 (Ga.L.1973, pp. 947, 1092) as to the rights of adjoining property owners to obtain commercial driveway permits according to the regulations of the Georgia Department of Transportation. Counsel for the condemnor stated "in his place" that the access to the road was not limited and that he would amend the declaration of taking to so show this. He also sought to present testimony of the right-of-way engineer for the district in which the land is located to show that the access to the remaining land of the landowner was not limited. However, the trial court refused to allow this testimony. A reading of the declaration of taking, the petition, and all the facts and circumstances surrounding the taking of the property, shows clearly that same was taken for the purpose of constructing "a certain State aid road (limited access highway) laid out by petitioner as part of the State Highway System of the State of Georgia." The property condemned in fee simple included, "such rights as described in such petition and such Application." At the time of the trial the land had already been condemned in accordance with the petition and the declaration of taking. Thus considering counsel's statement as an officer of the court, "in his place" as evidence that the remainder of the land not taken had unlimited access to the frontage or access road and that the taking was not limited (see Cross v. Cook, 147 Ga.App. 695, 696, 250 S.E.2d 28; and cases cited therein); the order of taking, the petition and the declaration of taking all refute his statement and that of the testimony he sought to introduce by the district engineer. The exercise of the right of eminent domain is a legislative function, and the powers delegated by the general assembly thereunder must be exercised in strict conformity with the statute. See Toomey v. Norwood Realty Co., 211 Ga. 814, 816, 89 S.E.2d 265; Marist Society of Ga. v. City of Atlanta, 212 Ga. 115, 118(4), 90 S.E.2d 564; State Hwy. Dept. v. McCurdy, 217 Ga. 731, 735, 124 S.E.2d 630. At the time there was an offer of amendment. But the pleadings were not amended, and it is very doubtful that same could be amended except through the procedure of starting an entire new in rem condemnation procedure. The pleadings set out that the condemnation involved a limited access highway and involved delineated access rights; hence, the trial court did not err in excluding the testimony of the district engineer and in disregarding the statement of counsel for the condemnor. See in this connection State Hwy. Dept. v. McCurdy, 217 Ga. 731, 736, 124 S.E.2d 630, supra.
3. Since the granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, the trial court did not abuse its discretion in denying the motion for new trial by sustaining the objection to a certain question with reference to "the comparison between your appraisals and the jury verdict." It cannot be said that a mistrial was essential to the preservation of the right to a fair trial as the court carefully instructed the jury to disregard the question and not to speculate as to what the answer might have been or as to the purpose of asking the question and to strike it from their minds and not to consider it in their deliberations. The trial...
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Dendy v. Metropolitan Atlanta Rapid Transit Authority, 63591
...the jury to determine its weight. Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 5, (76 S.E. 387) (1912); Dept. of Transportation v. Worley, 150 Ga.App. 768, 772, 258 S.E.2d 595 (1979)." Toney v. Johns, 153 Ga.App. 880, 882, 267 S.E.2d The trial judge abused his discretion in striking the te......
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