Department of Transp. v. Kendricks, 56542

• Decision Date: 28 November 1978
• Docket Number: No. 56542,56542
• Citation: 148 Ga.App. 242,250 S.E.2d 854
• Court: Georgia Court of Appeals
• Parties: DEPARTMENT OF TRANSPORTATION v. KENDRICKS et al.

Page 854

250 S.E.2d 854

148 Ga.App. 242

DEPARTMENT OF TRANSPORTATION v. KENDRICKS et al.

No. 56542.

Court of Appeals of Georgia.

Argued Sept. 20, 1978.

Decided Nov. 7, 1978.

Rehearing Denied Nov. 28, 1978.

Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Marion O. Gordon, Senior Asst. Atty. Gen., William A. Zorn, Sp. Asst. Atty. Gen., W. Anthony Moss, Atlanta, for appellant.

Gibbs, Leaphart & Smith, J. Alvin Leaphart, Jesup, for appellees.

BIRDSONG, Judge.

The Department of Transportation ("DOT") appeals the jury verdict and judgment based upon a claimed excess in a condemnation award. The appellees are the property owner and a leaseholder as intervenor. The facts show that in 1973, DOT obtained an easement on a narrow strip of land facing on Highway 301 running from south to north through the City of Jesup. The property owner was Ms. Kendricks and the intervenor, Clanton Motor Co., which rented the property from Ms. Kendricks. Prior to the taking in 1973, Clanton operated three separate businesses on the property, a Dodge dealership, a Case tractor and farm equipment business and a marine and motor boat business. Though the same salespersons sold in all three businesses, the businesses were operated separately, with each maintaining separate financial accounts. A part of the leased premises was used to display cars, a second portion to display boats, and a third part for tractors and farm equipment. The same service building was used for all three businesses. Access to Clanton's business premises was available throughout the length of the frontage of Highway 301, the level of the property line being the same as the street level. The display of models by Clanton was clearly visible to passersby as they traveled along Highway 301. After the taking, the roadbed of Highway 301 was lowered from a minimum of one foot at the upper or northern end of Clanton's leasehold to a maximum of over six feet at the lower or southern end of his premises. The easement taken by DOT constituted the slope from the new roadbed of Highway 301 to the new edge of Clanton's business premises. In addition, an access road was constructed along the top edge of the slope. The result of the slope and access road was that a substantial portion of Clanton's display area disappeared. In addition, because of the six foot bank between the roadbed and the newly elevated level of Clanton's display area, passersby could no longer see the displayed tractors, autos, and boats as easily. In fact, autos driving from the south to the north could not see the display area at all for a substantial part of the business premises. Clanton presented evidence that because of the limited display area he could no longer adequately show all three lines of his business, viz.: autos, boats, and tractors. As a result, Clanton testified that unless greater display area was provided for the tractors and other farm equipment, Clanton's franchise would be withdrawn. Mr. Clanton offered further evidence that he could not relocate his tractor business because of the prohibitive cost of relocation and establishing all the services presently offered at his present location. Clanton testified that in effect the tractor business had been destroyed. Though tractors were still present on the lot, Clanton was in the process of liquidating the inventory but at the same time attempting to minimize his losses. Real estate expert witnesses for both the condemnor and the condemnees testified as to the market value of the slope easement and possible consequential losses to the freehold and leasehold. This varied from $750 actual decreased value with no consequential damage from the condemnor's witness to over $27,000 actual and consequential damages to the freehold and leasehold by the condemnee's witnesses. Evidence offered by Clanton showed an actual loss of business and consequential losses to the tractor and farm equipment business of over $100,000. In its discussions with counsel, the trial court indicated that the evidence of loss of business profits would be admitted for the limited purpose of establishing the value of the leasehold. However, in its charge to the jury, the trial court authorized the jury to return a verdict in favor of Clanton for destruction or loss of business. The jury returned a verdict in favor of the property owner, Ms. Kendricks, for $13,950 for actual and consequential damages flowing from the slope easement and a verdict of $27,550 in favor of Clanton for the easement and loss of business. DOT argues that the verdict is excessive in that it should be limited to the actual and consequential damages to the land which was shown to be just over $27,000 and that the evidence of business loss is pertinent only insofar as it pertains to damage to the property. In other words, DOT argues that the condemnees should be limited in their recovery to the actual and consequential damage to the real estate, the respective shares being adjusted to their respective interests in the freehold and leasehold. It is DOT's contention that in the absence of a total destruction of a business and evidence of a unique value to the business owner, separate compensation for loss of business is not authorized. DOT enumerates ten alleged errors. Held :

1. We are faced with apparent confusion by the trial court and both parties to the trial below as to the applicable law pertaining to damages for business loss. The fundamental law on this subject in this state is found in the decision of Bowers v. Fulton County, 221 Ga. 731, 738, 146 S.E.2d 884. In interpreting that decision, this court held in State Hwy. Dept. v. Thomas, 115 Ga.App. 372, 376, 154 S.E.2d 812, 816, ". . . in this state, under our constitutional requirement, that the condemnee be paid 'just and adequate compensation' before his property is taken, the question which properly addresses itself to the jury's consideration, . . . is not 'What has the taker gained?', but 'What has the owner lost?', and that where there are separate interests to be condemned, the jury, in arriving at just and adequate compensation, is not only authorized but required to consider the value which the thing taken has to the respective owners of the interests being condemned. If just and adequate compensation to the owners of the various interests in the land being condemned requires that the total compensation exceed the value of the land, this presents no difficulty because, under Bowers, supra, and under the constitutional requirement mentioned, the jury is not only required to render a verdict for . . . condemnees for the value of the land taken, but also from whatever damages result to the condemnees from the condemnation proceeding."

Nevertheless, the trial court relied on the language in the holding in DOT v. Dent, 142 Ga.App. 94, 95, 235 S.E.2d 610, 612 which states in pertinent part: ". . . in the absence of a showing of a special or unique value to the owner, mere business losses caused by a partial taking of the land on which the business is located are not a separate element for compensation. Evidence of such losses may be submitted to the jury only to help establish the market value of the property taken. (Cits.)" That case involved a situation where the property owner also operated a business on the premises. After the taking, the property owner still operated the business but at a reduced level. This court in Dent simply recognized and applied the rule that in the absence of the total destruction of a business conducted on the partially condemned property where both the property and the business are considered as one property right and are owned by one person or interest, the partial business loss cannot be established as a separate item of damage but is a matter going to the diminution in the value of the property....