Donald v. Fulton County, 38035

• Decision Date: 05 February 1960
• Docket Number: No. 38035,No. 1,38035,1
• Citation: 112 S.E.2d 829,101 Ga.App. 198
• Parties: R. W. DONALD, Jr., v. FULTON COUNTY
• Court: Georgia Court of Appeals

Page 829

112 S.E.2d 829

101 Ga.App. 198

R. W. DONALD, Jr., v. FULTON COUNTY.

No. 38035.

Court of Appeals of Georgia, Division No. 1.

Feb. 5, 1960.

Syllabus by the Court

1. Under the circumstances of this case the merits of the ruling on the special ground of the amended motion for new trial may be considered in the absence of a brief of evidence.

2. In the absence of any evidence that there will be any consequential benefits to that portion of the land not taken, it was error for the court to charge the jury on the question of consequential benefits, and to overrule the amended motion for new trial assigning error thereon.

Fulton County instituted a condemnation proceeding against certain properties owned by Ralph W. Donald, Jr. The condemnee filed an answer admitting ownership and seeking just and adequate compensation. The matter came on to be heard before a Special Master, whose award was appealed by the condemnee to Fulton Superior Court. The case was there tried before a jury which returned a verdict for $8,300 as the market value of the property taken and $1,000 as consequential damages to the remaining property. The court entered judgment in accordance with this verdict. The condemnee's amended motion for a new trial was denied and he assigns error thereon.

N. Forrest Montet, Atlanta, for plaintiff in error.

Harold Sheats, Martin H. Peabody, Atlanta, for defendant in error.

FELTON, Chief Judge.

1. The general grounds of the motion for a new trial have been expressly abandoned. The one special ground of the amended motion assigns error on the following instructions in the court's charge: 'And the measure of consequential damages, if any, for the part of the lot not taken, where there are either benefits or damages involved, or both, is the difference between the market value of the land not taken before the strip is taken off and the benefits made and the market value of the remainder of the land after the strip of land is taken off and improvements made, that is, if the market value of the residue before the improvements is equal to or less than the market value of the residue after the improvements, there can be no recovery for consequential damages to the residue. But if the market value of the residue before the improvements is greater than the market value of the residue after the improvements, there should be a recovery, and the amount therefore is the difference between the market value of the residue before and after taking. The owner of the land actually taken is entitled, irrespective of any damages to the residue, to the...