Department of Transp. v. Davison Inv. Co., Inc.

• Citation: 470 S.E.2d 900,221 Ga.App. 29
• Decision Date: 15 March 1996
• Docket Number: No. A95A2152,A95A2152
• Parties: DEPARTMENT OF TRANSPORTATION v. DAVISON INVESTMENT COMPANY, INC. et al.
• Court: United States Court of Appeals (Georgia)

Page 900

470 S.E.2d 900

221 Ga.App. 29

DEPARTMENT OF TRANSPORTATION v. DAVISON INVESTMENT COMPANY, INC. et al.

No. A95A2152.

Court of Appeals of Georgia.

March 15, 1996.

Reconsideration Denied March 29, 1996.

Certiorari Granted June 28, 1996.

Michael J. Bowers, Attorney General, McClure, Ramsay & Dickerson, John A. Dickerson, Luther H. Beck, Jr., Toccoa, for appellant.

Andrew J. Hill, Jr., Lavonia, for appellees.

McMURRAY, Presiding Judge.

The Department of Transportation (DOT) condemned 6.164 acres from a tract of approximately 134 acres owned by condemnee Davison Investment Company, Inc. The condemnor paid $24,300 into the registry of the superior court as the estimated just and adequate compensation for the property condemned. Condemnee Davison Investment Company, Inc. filed its answer and appeal of the amount of compensation. The motion to intervene as additional condemnees of Mayes Davison and Agnes Davison Ray was granted, and following discovery, the case was tried before a jury which returned a verdict awarding the condemnees the sum of $316,000. The judgment followed the verdict, and condemnor appeals. Held:

1. Condemnor's first enumeration of error complains that the testimony of condemnees' expert witness should have been excluded at least insofar as it reflected an incorrect method of evaluating just and adequate compensation for the property actually taken. In argument, condemnor seems to concede that this witness complied with earlier case law concerning appropriate appraisal methodology, but complains that unrealistic numbers are submitted to the courts even after the recent decision of Dunaway v. Columbia County, 213 Ga.App. 840, 447 S.E.2d 31. The "new danger" perceived by condemnor lies in the need to appraise the land actually condemned as a separate entity, yet the supporting argument that the "appraisal method unjustly multiplied the value of the condemned property out of proportion to the value of Condemnees' total property prior to taking" is little more than a restatement of the pro rata method disapproved in Bland v. Bulloch County, 205 Ga.App. 317, 422 S.E.2d 223. The present case well demonstrates the inadequacy of a pro rata evaluation since the land taken was part of a small fraction of the property identified as being best suited for commercial purposes while the bulk of the acreage had no potential beyond its use as pasture or farmland. This enumeration of error lacks merit.

2. Condemnor also enumerates as error the refusal of the trial court to prohibit condemnees' expert's testimony regarding unsubstantiated and speculative uses for the land actually taken. At the time of the taking the land was being used as farmland. But condemnees' expert determined that the highest and best use of that portion of the property actually taken was commercial and based his estimate of its value on that potential. " '(T)he fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation. It must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land. (Cit.)' (Emphasis supplied.) Dept. of Transp. v. Great Southern Enterprises, [137 Ga.App. 710, 713, 225 S.E.2d 80]." Colonial Pipeline Co. v. Williams, 206 Ga.App. 303, 304, 425 S.E.2d 380.

Condemnor maintains that condemnees' expert did not lay a sufficient foundation to establish that the projected commercial use for the land was reasonably probable. But, while testifying as to the pattern of commercial development in the area, the expert opined that commercial development would have advanced towards the farm if the property had been for sale. The condemned land was within the city limits of Royston and thus had services available from that entity including utilities, fire protection, and police protection. There was substantial nearby commercial development and a lengthy frontage on Georgia Highway 17, a road on which there was already much commercial development.

"[I]t is within the trial court's discretion to determine whether the evidence shows that the subject property is reasonably suited for a use different from its existing use, and it may admit or exclude evidence of value for such other use. Its ruling admitting or excluding such evidence will not be reversed unless there was a manifest abuse of its discretion. Dept. of Transp. v. Great Southern Enterprises, 137 Ga.App. 710, 713(2)[, 225 S.E.2d 80, supra]." Colonial Pipeline Co. v. Williams, 206 Ga.App. 303, 304, 425 S.E.2d 380, supra. Under the circumstances of the case sub judice, we find no manifest abuse of discretion in the trial court's admission of valuation testimony reflecting the condemned land's enhanced value based on its potential for commercial development. See Dept. of Transp. v. Benton, 214 Ga.App. 221(1), 222, 447 S.E.2d 159.

3. Condemnor contends that the trial court erred in charging the jury that "while fair market value is ordinarily the same as actual value, there may be circumstances in which it may not be the same and under those circumstances your measure of damages would be actual value. It is up to you to determine whether such circumstances exist." While slight evidence that the property taken was unique may have authorized such a charge, we agree with condemnor's contention that no such evidence was presented at trial. Condemnees have failed to show any reason that the actual value of the property to them would not be the same as market value. See "the three recognized tests for determining whether property is unique, pursuant to Department of Transp. v. 2.734 Acres of Land, 168 Ga.App. 541 (309 SE2d 816) (1983)...." MARTA v. Funk, 206 Ga.App. 868, 873(2)(c), 426 S.E.2d 623. Nonetheless, there was no evidence of value at trial other than "fair market value," that is, no evidence of an actual value different from market value to which the jury might have applied these...