Dougherty County v. Snelling

• Decision Date: 11 July 1974
• Docket Number: No. 49414,No. 2,49414,2
• Citation: 132 Ga.App. 540,208 S.E.2d 362
• Parties: DOUGHERTY COUNTY v. A. Harold SNELLING et al
• Court: Georgia Court of Appeals

Page 362

208 S.E.2d 362

132 Ga.App. 540

DOUGHERTY COUNTY v. A. Harold SNELLING et al.

No. 49414.

Court of Appeals of Georgia, Division No. 2.

July 11, 1974.

Rehearing Denied July 31, 1974.

Landau, Davis, Farkas & Spooner, James V. Davis, Albany, for appellant.

Burt, Burt & Rentz, H. P. Burt, Albany, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Dougherty County sought to condemn for road purposes .114 acres of land and a permanent construction easement on .019 acres described in the petition and against A. Harold Snelling, Rollins C. Snelling, 60 Minute Systems, Inc., and the First National Bank of Albany as owners, lessees or lienholders. A special master was appointed who, after hearing evidence as to value, consequential damage, etc. made an award and filed it with the Clerk of Dougherty Superior Court. Condemnees appealed the matter to a jury in the superior court. At that stage the condemnor tendered an amendment by which the construction easement would be limited to the period required for constructing the improvement and providing that it would expire and terminate on completion thereof. Upon objection of the condemnees the amendment was disallowed, and appellant enumerates the disallowance as error.

Interrogatories were served on the condemnees calling for the names of all expert witnesses whom they would use at the trial, and for the substance of what each of them would testify to. Condemnor contends that there was failure to supply information as to what some of the experts would testify concerning consequential damages, and that when counsel for condemnor discovered at the trial that the claim for damages would be increased by reason of the testimony of these experts, they moved for postponement for a sufficient time to enable them to interview the witnesses and to seek rebuttal testimony for offering at the trial. The postponement was denied, and that is enumerated as error.

On trial the court admitted, over objection, evidence that the Department of Transportation planned at some future time to prohibit left turns across traffic in front of the property, and that is enumerated as error. Held:

1. It has been held in Paulk v. Georgia Power Co., 231 Ga. 721, 204 S.E.2d 154, s.c. 131 Ga.App. 218, 205 S.E.2d 484, that where an appeal of the award by a special master or by assessors to a jury has been tried and the jury has returned a verdict increasing the amount to be paid as the value of the land taken or as consequential damages, the condemnor must pay into the registry of the court, or to the condemnee, the sum representing the increase in these amounts (the amount of the award having already been paid into the registry of the court at or before the filing of the appeal to a jury) prior to the filing of a motion for new trial, ergo, prior to the filing of a direct appeal to an appellate court. However, in Paulk the condemnor was a public utility, while here it is a county, and the land was not being condemned for road, street or highway purposes, as it is here.

Art. I, Sec. III, Par. I of the Constitution of this state, as it now stands after the amendment of 1960 (Ga.L.1960, p. 1225) provides that when land is taken by the state, a county or a municipality for road, street or highway purposes 'just and adequate compensation therefor need not be paid until the same has been finally fixed and determined as provided by law . . .' Code Ann. § 2-301. The procedure for acquiring lands for road, street or highway purposes was prescribed in Ga.L.1961, p. 517; Ga.L.1962, Sept. Sess. p. 37; and Ga.L.1963, p. 124. The procedures applicable to the situation here were complied with. See State Highway Department v. Smith, 219 Ga. 800, 136 S.E.2d 334.

'No judgment or decree can, under our system, be said to be final until the time prescribed by law in which a motion for a new trial may be made, or a writ of error seeking to set aside such judgment has expired.' People's Bank of Talbotton v. Merchants' & Mechanics' Bank of Columbus, 116 Ga. 279, 282, 42 S.E. 490, 492. 'A judgment cannot be treated as final so long as either of the parties has the right to have the same reviewed by the appellate court; and if it is not so reviewed, it is not final until the appellate court judgment is made the judgment of the trial court. Twilley v. Twilley, 195 Ga. 297, 298, 24 S.E.2d 46, 47; Powell v. Powell, 200 Ga. 379, 382, 37 S.E.2d 191; Garrick v. Tidwell, 151 Ga. 294, 106 S.E. 551.' New Amsterdam Cas. Co. v. Russell, 103 Ga.App. 553, 556(2), 120 S.E.2d 150, 152.

In State Highway Department v. Howard, 119 Ga.App. 298, 167 S.E.2d 177 this court held: 'It is error to dismiss a motion for new trial by a condemnor who seeks to obtain land for the construction of a road or a street because of failure of the condemnor to pay into the registry of the court or to the condemnee the amount representing the increase of the compensation to be paid, as fixed by the verdict of a jury, over the amount which had been paid in on a declaration of taking. When land is taken for road or street purposes the condemnor is not bound to pay the additional compensation until a judgment fixing it has become final. It is not a condition precedent that the increased compensation be paid before moving for a new trial or before appealing from the judgment on the verdict or from the denial of a new trial.'

Thus, the ruling in Paulk v. Georgia Power Company, 231 Ga. 721, 204 S.E.2d 154, supra, has no application here, and failure of the condemnor to pay into the registry of the court the increase represented by the amount of the verdict of the jury over the award of the special master did not affect its right to appeal the judgment on the verdict.

2. It is obvious that the disallowance of the amendment was on the belief that after an award has been made by the appraisers or by a special master, the eminent domain petition can not be amended to make any change in the property to be condemned. It is true that the proceeding can not be abandoned, and the petition can not be amended in such a way as to prejudice the condemnee. But beyond these limitations, amendment of the petition is allowable in an eminent domain proceeding just as in any other. The description of the land...