Dixie Highway Bottle Shop, Inc. v. Department of Transp.

• Decision Date: 03 October 1979
• Docket Number: No. 57677,57677
• Citation: 150 Ga.App. 839,258 S.E.2d 646
• Parties: DIXIE HIGHWAY BOTTLE SHOP, INC. et al., v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

Page 646

258 S.E.2d 646

150 Ga.App. 839

DIXIE HIGHWAY BOTTLE SHOP, INC. et al., v. DEPARTMENT OF TRANSPORTATION.

No. 57677.

Court of Appeals of Georgia.

Argued April 11, 1979.

Decided July 6, 1979.

Rehearing Denied July 20, 1979.

Certiorari Granted Oct. 3, 1979.

Candler Crim, Jr., Thomas C. Bianco, Atlanta, for appellants.

Arthur K. Bolton, Atty. Gen., Charles C. Pritchard, Joseph G. Davis, Jr., Macey &amp Zusmann, Abraham Sharony, Steven Schaikewitz, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This is a condemnation case involving the owner and several lessees having businesses located on the premises. Condemnor sought the permanent acquisition of property (7127.62 sq. ft.), a temporary construction easement (3234.15 sq. ft.), and a driveway easement. Eighty-three hundred dollars was paid into court, and both the owner and the lessee, Dixie Highway Bottle Shop, Inc., appealed.

At the trial the parties stipulated the above, and that the business of Dixie Highway Bottle Shop, Inc. involved sales of liquor, beer and wine at a location "near a tri-county area." Both DeKalb and Clayton Counties were dry counties, but the store and property is located in Fulton County, a wet county, although the parties also stipulated that effective December 8, 1970, beer and wine sales would be made in DeKalb County. Effective February 25, 1972, liquor sales could be made in DeKalb County.

The condemnor offered the expert testimony that the market value of the land taken was $17,150 and that there were no consequential damages. All parties accepted his "fair evaluation." However, the lessee condemnee offered testimony that the taking caused a reduction in the number of parking spaces at the liquor store and necessitated a change in the grade of the driveway so that ingress and egress is more difficult. It also offered testimony that it caused traffic congestion, physical changes in the entrance to the parking lot, unsafe conditions due to snow and ice on the slopes, and automobile incidents occurred in getting in and out of the property. Dixie contends that these changes have resulted in a substantial loss of business profits. Dixie attempted to introduce evidence to substantiate the contention of business losses, that is, to prove a business loss resulting in a special element of compensation or as consequential damages, but this evidence was excluded.

At the conclusion of the trial, in which only the fair evaluation of $17,150 and that there were no consequential damages involved in the taking were allowed in evidence, the trial court directed a verdict in the amount of $17,150 as the value of the land taken and refused to submit to the jury the issue of business losses either as obtaining directly to the lessee condemnee Dixie or as consequential damages. The trial court was of the opinion that there was no special or unique value of the property shown as it related to Dixie. Dixie appeals contending that the trial court erred in directing the verdict, excluding evidence of its business losses and refusing to submit an issue of special or unique value of the property to the jury. Held :

1. As a general rule in condemnation cases market value is used as the method of arriving at what constitutes just and adequate compensation. State Hwy. Dept. v. Augusta Dist. of N. Ga. Conference, Methodist Church, 115 Ga.App. 162, 164, 154 S.E.2d 29. However, market value is not always the fairest or most accurate method of measuring the loss to the condemnee. See Burke County v. Renfroe, 64 Ga.App. 395, 396, 13 S.E.2d 194; Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884; Elbert County v. Brown, 16 Ga.App. 834, 847, 86 S.E. 651; State Hwy. Dept. v. Augusta Dist. of N. Ga. Conference, Methodist Church, 115 Ga.App. 162, 164, 154 S.E.2d 29, supra.

2. Generally, testimony and evidence are allowed as to the potential usefulness for various purposes to which property may be put. "Whether it is or is not used for a particular purpose does illustrate its peculiar value and often shows its worth to the condemnee in excess of its market value. Central Ga. Power Co. v. Stone, 139 Ga. 416, 419, 77 S.E. 565." Bowers v. Fulton County, 221 Ga. 731, 739, 146 S.E.2d 884, 891, supra.

3. A condemnee is entitled to be compensated for all damage done to his property and expenses caused by the condemnation proceedings, "(s)uch damages and expenses are separate and distinct items from the amount to which he is entitled to recover as the actual value of his . . . (property)." Bowers v. Fulton County, 221 Ga. 731(2), 146 S.E.2d 884, 886, supra.

4. Fair market value alone is not in every case a proper criterion for determining just and adequate compensation. Bowers v. Fulton County, 221 Ga. 731(5, 6), 146 S.E.2d 874, supra; Housing Authority v. Savannah Iron etc. Inc., 91 Ga.App. 881, 882(3), 885-886, 87 S.E.2d 671. Indeed, every person who has an established business in a location which cannot be duplicated within the immediate area suffers a loss which is peculiar and unique to him, not shared by members of the general public dealing in such property and buying and selling it for profit. Market value presupposes not only a buyer willing to purchase but a seller willing to sell. Consequently, when property is used for a particular purpose it has peculiar value which may be over and above its market value. See Central Ga. Power Co. v. Stone, 139 Ga. 416, 419, 77 S.E. 565, supra; Housing Authority v. Troncalli, 111 Ga.App. 515, 142 S.E.2d 93; Bowers v. Fulton County, 221 Ga. 731, 739, 146 S.E.2d 874, supra.

5. Our courts have seemingly distinguished or attempted to distinguish between the total destruction of the business and mere damage to business. See in this connection State Hwy. Dept. v. Hood, 118 Ga.App. 720, 165 S.E.2d 601 (loss of rental of a dairy farm by division of property); State Hwy. Dept. v. Novle, 114 Ga.App. 3, 150 S.E.2d 174 (destruction of a fish and cattle pond and resulting estimated loss of business in a retail fish and meat market held to be a speculative loss); Bowers v. Fulton County, 122 Ga.App. 45, 50, 176 S.E.2d 219 (s.c. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 874, supra, affirmed Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347) (a total taking of a business); Williams v. State Hwy. Dept., 124 Ga.App. 645, 647, 185 S.E.2d 616 (partial loss of business).

6. In Williams v. State Hwy. Dept., 124 Ga.App. 645, 647, 185 S.E.2d 616, supra, this court approved a charge on consequential damages as damages to the remainder of the property, that is, the difference in market value of a business which was not totally destroyed before and after the taking not as a separate item of damage but only as an element to be considered in arriving at the value before and after the taking. This court approved a charge that in the absence of a showing of a special or unique value to the owner, the damage to a business by a partial taking of the land is no basis for compensation, except evidence of such damage may be given to the jury to help establish market value of the property. When a partial taking damages a business the market value of the remaining land is affected by the special or unique value, or best use rule, and no special element of damage is required. The resulting discrepancy in market value of the remaining land is the consequential damage. This case is...