Dunaway v. Columbia County, A94A0721

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BIRDSONG
• Citation: 213 Ga.App. 840,447 S.E.2d 31
• Parties: DUNAWAY v. COLUMBIA COUNTY.
• Docket Number: No. A94A0721,A94A0721
• Decision Date: 19 April 1994

Page 31

447 S.E.2d 31

213 Ga.App. 840

DUNAWAY v. COLUMBIA COUNTY.

No. A94A0721.

Court of Appeals of Georgia.

April 19, 1994.

Reconsideration Denied July 13, 1994.

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., Augusta, for appellant.

Powell & Chapin, Richard L. Powell, Augusta, for appellee.

BIRDSONG, Presiding Judge.

Robert H. Dunaway appeals the verdict and judgment awarding $289,000 for 100 acres taken by Columbia County, Georgia, from a 1,000-acre tract. No consequential damages were awarded. The special master's award had been $350,000 for the 100 acres taken and consequential damages to the remainder of $7,500; appellant contends there was evidence of comparable sales for $4,500 per acre and $6,000 per acre. Held:

1. Appellant contends the trial court erred in permitting three condemnor's witnesses to testify that the value of the 100 acres taken was the difference between the value of the whole 1,000-acre tract before the taking and the value of the remainder after the taking; in other words, as the condemnor contended, to determine the value of the part taken, "you determine the value of the whole, then you determine the value of the part taken, and then you determine if there was any damage to the remainder."

2. Appellee contends the condemnee waived objections to this testimony. The record shows that appellant withdrew his objection to the first witness' testimony to let the witness answer the question, but he moved to strike the second witness' testimony to the same effect and was overruled; he moved to strike the third witness' testimony to the same effect although the trial court did not rule on the motion. In Mable v. State, 261 Ga. 379, 381, 405 S.E.2d 48, the Supreme Court held: "There is a distinction between 'illegal' evidence and 'secondary' evidence. 'A motion to rule out testimony illegally admitted even without objection is never too late until the cause is finally submitted to the jury.' Blount v. Beall, [95 Ga. 182, 189, 22 S.E. 52]. (Emphasis supplied.)" In Mable, the challenged testimony was error of constitutional dimension. "Accordingly, the defendant was entitled either to object to it contemporaneously or to move to strike it at any time before the case was submitted to the jury." Id. See also Patton v. Bank of LaFayette, 124 Ga. 965, 974, 53 S.E. 664, cited by the Supreme Court in Mable, and see other cases cited in the dissent in Mable v. State, 197 Ga.App. 751, 753-754, 399 S.E.2d 509.

In Mable, the motion to strike was made as to the same witness' testimony which was earlier not objected to. In this case, the motion to strike was made as to a different witness. But we see no material difference in Mable and this case, for the error was of constitutional proportions.

In this case, as held in Division 2, infra, evidence that the value of the property taken is determined by calculating the difference between the value of the whole and the value of the remainder after the taking, is illegal error of constitutional dimension, since it results in a taking without just and adequate compensation for the property taken. Appellant moved to strike this evidence; the fact that he had withdrawn his objection when it was first offered did not change its character as illegal evidence. It was error of "constitutional dimension" and could be objected to at any time before the case was given to the jury. Mable, 261 Ga. at 381, 405 S.E.2d 48. Appellant's withdrawal of his objection to this illegal evidence so as to let the witness answer is not a "waiver" (see London v. Bank of the South, 170 Ga.App. 44, 48, 315 S.E.2d 924) such as could render the evidence legal. Appellee condemnor cites no authority on appeal for its contention that appellant waived his objections to this evidence, so we will not find a waiver in the face of the Supreme Court's Mable decision.

3. Appellee contends the principle and the evidence objected to--that the value of property taken is determined by calculating the value of the entire tract before the taking and its value after the taking--was upheld in Dept. of Transp. v. Gunnels, 255 Ga. 495, 340 S.E.2d 12, and that Justice Weltner's special concurrence in that case properly states that the trier of fact "must determine the value of the condemnee's interest before the taking; and it must determine the value of such interest, if any, as shall remain after the taking." Id. at 499, 340 S.E.2d 12.

Appellee/condemnor is incorrect in saying the Supreme Court in Gunnels upheld the charge that the value of the part taken is determined by calculating the value of the whole before the taking, less its value (i.e., the remainder's value) after the taking. The condemnor complained in Gunnels that a jury charge to this effect allowed a double recovery on consequential damages to the remainder. When the case was before us, we were bound by Elliott v. Fulton County, 220 Ga. 377, 381, 139 S.E.2d 312 to approve a charge that the measure of damages for the value of the part taken (not consequential damages to the remainder) was the difference between the market value "of the whole lot" just before the taking and the market value "of the whole lot" immediately after the taking. Dept. of Transp. v. Gunnels, 175 Ga.App. 632, 633, 334 S.E.2d 197. On certiorari, the Supreme Court overruled its decision in Elliott v. Fulton County, supra, thus reversing our decision in Dept. of Transp. v. Gunnels, supra at 175 Ga.App. 632, 334 S.E.2d 197. The Supreme Court agreed with the views expressed by then-Judge Carley in his special concurrence in our decision, viz that " '[i]f the market value of the "whole lot immediately after the taking" is deemed to be the market value of the remainder immediately after the taking ... the [result would be] a figure which already represents the diminution in the market value of the remainder.' " Dept. of Transp. v. Gunnels, supra at 255 Ga. at 496, 340 S.E.2d 12.

The concept propounded by the condemnor's witnesses is related to the calculation of consequential damages. It is not a proper standard for calculation of the value of the property taken. In Bland v. Bulloch County, 205 Ga.App. 317, 318, 422 S.E.2d 223, cert. denied, the trial court charged: " 'In order to determine [the value of the part taken you should determine] the fair market value of the entire tract of property [the condemnee] owned before any of it was taken, and then you should ... determine the fair market value of what was taken ... considering that part that was taken as part of the whole.' " A majority of this court said the jury could understand "that the relationship between the part taken and the whole from which it was taken must be the basis upon which the fair market value of the part taken was calculated." Id. We held this was wrong because the charge restricted the jury to a pro rata valuation of the property taken, which is "not necessarily proper because the value of the part taken is not dependent on the size of the whole. If, for example, the 15-acre strip was taken from 105 acres ( 1/7 of the whole) rather than from 75 acres ( 1/5 of the whole), the pro rata method could result in a lower value simply because of the size of the whole. . . . In addition, the pro rata method does not accommodate variations in the value of different parts of a tract. . . . The pro rata method averages the value of whatever the condemnee happens to own, rather that measuring the value of the taken portion as it is, with its unique characteristics and particular setting.... The value of the part taken is not automatically measured by the size of the parcel from which it is taken, although the value of the part taken may be derived in part by the nature of the land around it because the setting affects the highest and best use of the taken property." (First emphasis supplied.) Id. at 319, 422 S.E.2d 223.

The dissent in Bland contended the charge did not calculate the value of the part taken by determining the value of the condemnee's property before and after the taking; the dissent contended the charge resembled that in Rucker v. Dept. of Transp., 188 Ga.App. 283, 372 S.E.2d 839, that the value of land taken is not necessarily the same for a small lot as for a small strip from a larger tract. Id. at 284, 372 S.E.2d 839. This statement is obviously true, but is a very different thing from determining the value of land taken by determining the remainder of the condemnee's contiguous property without it.

A valuation which determines the value of a tract taken by determining the value of the remainder of the condemnee's contiguous property after the taking may lead to a double recovery on consequential damages or, as may have happened in this case, to a finding that the diminution in value to the remainder is the value of the part taken (Dept. of Transp. v....