Department of Transp. v. Benton, A94A1234

Citation214 Ga.App. 221,447 S.E.2d 159
Decision Date28 July 1994
Docket NumberNo. A94A1234,A94A1234
CourtUnited States Court of Appeals (Georgia)

Michael J. Bowers, Atty. Gen., George P. Shingler, Sr. Asst. Atty. Gen., Avant & Evans, Irwin B. Evans, Sandersville, for appellant.

Glover & Davis, J. Littleton Glover, Jr., R. Keith Prater, Newnan, for appellees.

BIRDSONG, Presiding Judge.

The Department of Transportation appeals the jury's condemnation award for 17.686 acres for right-of-way purposes. The land taken was part of a 123.28-acre tract owned by condemnees. Condemnor's witness Shepherd found just and adequate compensation for the land taken at $40,600 with no consequential damages. Condemnees' witness Blackwell determined the value of the land taken was $79,526 with consequential damages to the remainder of $272,449. The jury returned a general verdict for $182,800. Held:

1. Condemnor contends the trial court erred in allowing condemnees' witness Blackwell to testify as to the value of the property taken based on "hypothetical developed subdivision lots on condemnees' undivided, unimproved tract of land." Condemnor contends that the valuation was misleading, as there was no question that the 123.28-acre tract was an undivided, unimproved tract both before and after the taking. Both parties agree that the best use of this property is residential.

In condemnation proceedings the trial court may exercise its discretion to determine whether evidence shows a reasonable probability that the subject property can possibly be used for a proposed purpose, such as subdivision use, and the court's discretion in admitting such evidence will not be reversed unless there was a manifest abuse of discretion. Colonial Pipeline Co. v. Williams, 206 Ga.App. 303, 304, 425 S.E.2d 380. In Colonial Pipeline Co., an expert witness described a method for subdividing land into separate identified lots suitable for immediate residential development. We reversed the award for consequential damages because the testimony valued the land as if it were already subdivided, at the retail price that would be paid by a purchaser of a subdivided lot. Even where a different use is probable, the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can only consider the new use to the extent that it affects the market value on the date of taking.

In all cases, the only question for decision is the value of property taken (or consequential damages) at the time of taking. City of Dalton v. Smith, 210 Ga.App. 858(2), 437 S.E.2d 827. The 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. Colonial Pipeline, supra at 304, 425 S.E.2d 380, citing Dept. of Transp. v. Great Southern Enterprises, 137 Ga.App. 710, 713(2), 225 S.E.2d 80. Even where a different use is shown to be reasonably probable, the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can consider the new use only to the extent that it affects the market value on the date of taking. Colonial Pipeline Co., supra, citing Pursley, Ga. Eminent Domain, § 6-5. Condemnees' expert could give his opinion of the value of the land on the date of taking "based upon its enhanced value because of its adaptability as a residential subdivision"; he could not testify as to the value before and after the taking based upon his assumption of the value as if the property had already been subdivided, but where he gives reasons which appear to be wholly speculative or conjectural, his opinion is without foundation and without probative value. Colonial Pipeline Co., supra at 305, 425 S.E.2d 380. See generally Swanson v. Dept. of Transp., 200 Ga.App. 577(2), 409 S.E.2d 74.

The testimony valued the land taken as if it were already subdivided, including the "net" after deducting the cost of subdividing, and as if it were fully developed and sold on the retail market. The land's present enhanced value based on its potential as residential development property was admissible, not its future retail "net"...

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24 cases
  • Westgate Recreation Ass'n v. Papio-Missouri River Natural Resources Dist.
    • United States
    • Supreme Court of Nebraska
    • May 10, 1996
    ...of the actual testimony. Norfolk and Western Ry. Co. v. Puryear, 250 Va. 559, 463 S.E.2d 442 (1995). Accord Dept. of Transp. v. Benton, 214 Ga.App. 221, 447 S.E.2d 159 (1994). (c) Because of the foregoing evidential errors, the second assignment of error is meritorious. IV. JUDGMENT For the......
  • Department of Transp. v. Acree Oil Co.
    • United States
    • Supreme Court of Georgia
    • February 19, 1996
    ...any future delays and uncertainties might have on the remainder to be tied to the date of taking, see, e.g., Dept. of Transp. v. Benton, 214 Ga.App. 221, 222, 447 S.E.2d 159 (1994), and allowed evidence meeting that criterion. While error was committed by the trial court in its refusal to a......
  • Evans v. Dep't of Transp.
    • United States
    • United States Court of Appeals (Georgia)
    • March 19, 2015
    ...zoning considerations are only relevant in condemnation cases that fall under the analysis employed in Dept. of Transp. v. Benton, 214 Ga.App. 221, 222 –223(1), 447 S.E.2d 159 (1994), where we found that the trial court erroneously allowed speculative evidence regarding the hypothetical fut......
  • City of Harligen v. Estate of Sharboneau
    • United States
    • Supreme Court of Texas
    • May 17, 2001
    ......State ex rel. Dep't of Transp. v. Panell, 853 P.2d 244, 246 (Okla. Ct. App. 1993); Fruit Growers Express ...Rptr. 2d 91, 93-95 (Cal. Ct. App. 1992); Department of Transp. v. Benton, 214 Ga.App. 221, 447 S.E.2d 159, 161 . Page 186 . ......
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