Department of Transp. v. Simon

• Decision Date: 26 November 1979
• Docket Number: No. 57985,57985
• Citation: 151 Ga.App. 807,261 S.E.2d 710
• Parties: DEPARTMENT OF TRANSPORTATION v. SIMON et al.
• Court: Georgia Court of Appeals

Page 710

261 S.E.2d 710

151 Ga.App. 807

DEPARTMENT OF TRANSPORTATION v. SIMON et al.

No. 57985.

Court of Appeals of Georgia.

Argued May 29, 1979.

Decided Sept. 7, 1979.

Judgment Adhered to on Rehearing Oct. 18, 1979.

Certiorari Granted Nov. 26, 1979.

Arthur K. Bolton, Atty. Gen., William C. Joy, Asst. Atty. Gen., D. Field Yow, Augusta, for appellant.

Patrick J. Rice, Augusta, for appellees.

CARLEY, Judge.

Condemnation proceedings were instituted against a portion of a lot owned by Mrs. Simon (condemnee). By its "Declaration of Taking," the Department of Transportation (condemnor) estimated the "just and adequate compensation" for the portion to be $14,900 and paid that sum into court. Thereafter, an order condemning the property, some .097 acres, was entered and the land taken. Mrs. Simon, being dissatisfied with the compensation, filed her notice of appeal, praying for a jury trial "as to the value of the property taken and the prospective and consequential damages to the remaining property," attorney fees and expenses of litigation.

The case came on for trial and the jury returned a verdict for $42,912 and attorney fees and costs. The condemnor appeals.

1. Mrs. Simon's property was condemned for construction of a limited access highway project. It appears that the same project also necessitated the condemnation of a portion of a lot adjoining Mrs. Simon's, as a result of which taking, the adjacent lot became landlocked. The owner of the allegedly landlocked parcel is not a party to this in rem action which in no way involves the taking of or damage to such adjacent property. In his opening statement, the attorney for Mrs. Simon made reference to the landlocked nature of the adjoining property. The condemnor objected to references to property other than the condemnee's and moved for a mistrial. This motion was overruled, the court instructing the jury on the right of a landlocked property owner to condemn a 20-foot easement across the land of another upon payment of just and adequate compensation. His instructions concluded: "I would instruct you that you would not consider that in your evaluation of this particular property. In other words, the taking of the 20 foot easement, whether or not it will take place or not you should not consider in determining the value of the property taken. However, it is a real fact of life that it could possibly happen; or it could happen that you can't get proper planning and zoning to do anything with a 20 foot right-of-way. You need more than that in most places in Richmond County. So it might be that the person who is landlocked would be put in worst shape, I don't know, because I think you need 40 feet if you want to do anything with a piece of property. But anyway I am going to allow it in with those instructions."

During the trial on the issue of just and adequate compensation for the taking and damage to the condemnee's property, testimony as to the landlocked nature of the adjoining property and the possibility that a private right-of-way would be sought over the condemnee's remaining property was admitted into evidence, over the condemnor's strenuous objections and in his closing argument, the attorney for Mrs. Simon made the following statements: "There is no question that (the adjoining property) is landlocked, there is no dispute about it. There is no dispute that there is only one way for these people to get out. If they want to get out, they are going to get out right through our property. There is no evidence to the contrary. Sure, they may stay there forever; but does that make sense? Are the people just going to have their property there and never get to it, never use it? . . . What is so unbelievable to me, and I hope is unbelievable to you, is, that (the right of the adjoining property owner to condemn a 20 foot right-of-way) has no effect on Mrs. Simon's property; that someone coming along looking for a piece of property on Highway 25 would not take into consideration that they are going to lose another 20 feet off of their property . . ." The condemnor again objected and moved for a mistrial, but its motion was overruled.

Finally, in his charge to the jury, the trial judge stated: "(W)here any person owns real estate to which he has no means of access, ingress or egress, such person may file a petition to condemn an easement of access, ingress and egress, not to exceed 20 feet in width across the property of an adjoining land owner. In such a case the adjoining land owner is compensated by the party obtaining the easement for the value of the property taken and any consequential damages to the property after the taking." The condemnor timely objected to this charge, on the grounds that "to inject the question of the right of some other property owner adjacent to the property involved in this taking to condemn an easement across it is prejudicial to the (condemnor) and, . . . , is contrary to law . . ."

The condemnor enumerates as error the various rulings and actions of the trial court made with regard to the propriety of argument and admissibility of evidence concerning the landlocking of Mrs. Simon's neighbor and the possibility that, as the result, a private right-of-way would be sought across her remaining property. In other words, the condemnor contends that the landlocking of the adjoining property by the project, resulting in the possibility that a future easement might be taken over Mrs. Simon's remaining property, is not a "taking or a damaging" of that remainder which is compensable in this condemnation proceeding. Mrs. Simon argues that the fact that the highway project landlocked her neighbor and created the possibility that a 20-foot right-of-way will be sought over her property is a "circumstance" which adversely affects the present market value of her property remaining after the taking here at issue. It is thus urged that argument and evidence on this issue was proper as an element of "consequential damage" to her remainder, which she can recover in this condemnation proceeding.

The question presented for resolution is whether the taking of property adjoining Mrs. Simon's, resulting in the possible private condemnation of a right-of-way across her remaining property, is a compensable element of consequential damage to her remainder which may be recovered in this condemnation action. Art. I, Sec. III, Par. I of the Constitution of Georgia provides, inter alia: "Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid . . ." Code Ann. § 2-301(1). "There are only two elements of damages to be considered in a condemnation proceeding: first, the market value of the property actually taken; second, the consequential damage that will Naturally and proximately arise to the remainder of the owner's property From the taking of the part which is taken and the devoting of it to the purposes for which it is condemned, including its proper maintenance and operation, and the measure of these consequential damages is the Diminution in the market value of the remainder of the property Proximately arising from these causes . . . (Cits.)" (Emphasis supplied.) McArthur v. State Hwy. Dept., 85 Ga.App. 500, 69 S.E.2d 781 (1952).

Thus in order for a condemnee to recover consequential damages to the remainder of his property when only a part is taken, it must appear that the damages to the remainder proximately and naturally arose from the condemnation and taking of the Condemnee's own property. "Consequential damages to a contiguous tract of land having a different ownership from that in which the taking occurs may be real and may in fact exist, but A separate owner's claim for consequential damages to his land contiguous to the tract where the taking occurs cannot be asserted in a condemnation action. Consequential damages to 'the remainder of the tract in which the taking occurs' are the only consequential damages that may be recovered in the condemnation action." (Emphasis supplied.) Ga. Power Co. v. Bray, 232 Ga. 558, 560, 207 S.E.2d 442, 443 (1974). See also Southwire Co. v. Dept. of Transp., 147 Ga.App. 606, 607(1), 249 S.E.2d 650 (1978).

In the case at bar it is apparent that Mrs. Simon's claim for consequential damages was based not only on the "taking" of her property by the condemnor but also in part on the taking of the property of her adjoining landowner. It is because a portion of the adjacent lot was taken that the remainder of that property became landlocked; that egress and ingress to the remainder of that property is now impossible is an element of consequential damage to it, for which the adjoining landowner can receive compensation in a condemnation proceeding. See, e. g., State Hwy. Dept. v. Howard, 119 Ga.App. 298, 299(7, 8, 9), 167 S.E.2d 177 (1969). The possibility that, as the result of this "taking" of his property, the adjoining landowner might condemn a private right-of-way across Mrs. Simon's property "may be real and may in fact exist." That there now exists the possibility that a private right-of-way will be condemned across her property may be a "circumstance" of Mrs. Simon's remaining property. But the fact remains that this real and existing circumstance did not arise proximately from the "taking" of Her property and a claim for consequential damages which is based thereon may not be recovered in this condemnation proceeding. McArthur, supra; Bray, supra. Compare State Hwy. Dept. v. Hood, 118 Ga.App. 720, 165 S.E.2d 601 (1968). While in the instant case, unlike Bray, Mrs. Simon is not attempting to recover consequential damages to a contiguous tract having a different ownership, she does seek to increase consequential damages to her remainder by showing the loss of access of the adjoining property. See Southwire Co., supra. If Mrs. Simon's remaining property has suffered damage by virtue of the taking which occurred on the adjoining...