Fulton County v. Cox, 37676

• Decision Date: 04 June 1959
• Docket Number: No. 2,No. 37676,37676,2
• Citation: 109 S.E.2d 849,99 Ga.App. 743
• Parties: FULTON COUNTY v. W. R. COX
• Court: Georgia Court of Appeals

Page 849

109 S.E.2d 849

99 Ga.App. 743

FULTON COUNTY v. W. R. COX.

No. 37676.

Court of Appeals of Georgia, Division No. 2.

June 4, 1959.

Rehearing Denied June 29, 1959.

Syllabus by the Court.

1. Evidence by a witness for the condemnee that an unspecified number of undescribed parcels of property in a block adjacent to that wherein was located the land sought to be condemned sold for a specified average price per square foot was inadmissible to show the value of the condemnee's property.

2. When considered in its entirety the charge of the trial court respecting the measure of damages was not fairly subject to the interpretation sought to be placed on it in special grounds 2 and 3, and the trial court did not err in overruling those grounds of the motion for a new trial.

Fulton County filed a condemnation proceeding against certain described lands located on Memorial Drive in the City of Atlanta as the property of W. R. Cox, said land to be used as a part of a proposed public highway. The assessors appointed in the case made an award, and both Fulton County, the condemnor, and Cox, the condemnee, being dissatisfied therewith filed appeals to the superior court. On the trial of the case and after the introduction of evidence and the charge of the court, the jury returned a verdict finding that the value of the land taken was $50,000. The condemnor filed a motion for a new trial on the general grounds and on three special grounds which was denied, and the exception here is to that judgment. The general grounds of that motion are expressly abandoned by counsel for the plaintiff in error in this court.

Harold Sheats, Paul H. Anderson, George Gillon, Atlanta, for plaintiff in error.

Harry P. Hall, Jr., John L. Westmoreland, John L. Westmoreland, Jr., Atlanta, for defendant in error.

CARLISLE, Judge.

1. The first special ground of the motion for a new trial assigns error because a witness for the condemnee was permitted to testify on direct examination as to the average price per square foot paid by the State of Georgia in its purchase of a number of separate parcels of property under different ownership located in an area adjacent to the property in question. This ground of the motion shows that the question which elicited the testimony complained of was objected to on the ground that the average price per square foot on a block-wide basis would not throw any light on the value of any particular property and on the ground that the defendant's own witness had testified that such average price would not reflect the fair market value of any of the parcels and that it would ordinarily cost twice as much to acquire property in that manner.

The record in this case shows that the particular parcel of property involved here was a part of an extensive acquisition of some nine or ten square blocks of city property being acquired by purchase and condemnation by the county for the purpose of the construction of a highway project. It was located in a block bounded by Memorial Drive, Capitol Avenue, Woodward Avenue and Crew Street. The witness was asked if he was familiar with the purchase of the property surrounded by Memorial, Capitol, Woodward and Frazer, to which he replied that he was, and that the average price per square foot paid for that property was $6.40 for that fronting on Capitol Avenue, and $4.38 per square foot for that fronting on Memorial Drive, and that this porperty was purchased by the State between May and November of 1956. The property here in question was taken on April 29, 1957. On cross-examination this witness testified that the sales of the property about which he was testifying were the last prior to the taking of the property here involved, and that in his opinion that was the most comparable sale that he had to go by. However, it will be noted that this testimony did not refer to any particular sale, or sales, but to an unspecified number of sales made at unspecified times and places. No evidence as to the nature of the improvements or the condition of such improvements on any of the property referred to was introduced, nor was any key furnished by which the jury could have made a comparison of the properties. 'On a question in regard to the value of land sought to be condemned, it is competent to introduce evidence of sales of property similar to that in question, made at or near the time of the taking. The exact limit either of similarity or difference, or of nearness or remoteness in point of time is difficult, if not impossible, to prescribe by any arbitrary rule, but must to a large extent depend on the location and the character of the property and the circumstances of the case. It is to be considered with reference to throwing light on the issue, and not as a mere method of raising a legal puzzle.' Flemister v. Central Ga. Power Co., 140 Ga. 511, 515-516 (6), 79 S.E. 148, 150.

An examination of the cases which have applied the above stated rule, both in approving the admission of such evidence or in approving its exclusion leads to the inescapable conclusion that the rule thus formulated was intended to permit the introduction of evidence of particular sales, after such evidence had been qualified by the introduction of evidence as to the similarity of the particular property thus referred to and...