Georgia Power Co. v. Hendricks
| Citation | 130 Ga.App. 733,204 S.E.2d 465 |
| Decision Date | 31 January 1974 |
| Docket Number | No. 48824,No. 2,48824,2 |
| Parties | GEORGIA POWER COMPANY v. Millard W. HENDRICKS et al |
| Court | United States Court of Appeals (Georgia) |
Jones, Cork, Miller & Benton, Wallace Miller, Jr., Macon, James G. Maddox, Jefferson, for appellant.
Smith & Harrington, Will Ed Smith, Eastman, for appellees.
Syllabus Opinion by the Court
This is an appeal by the condemnor from a judgment on a verdict in condemnation proceedings for power line rights-of-way. Held:
1. Enumerations of Error 1 and 2 are without merit. The verdict was authorized by the evidence.
2. Enumeration of Error 3. While the portions of the charge complained of, taken out of context, may constitute error, when considered as a whole, the charge does not permit the award of the value of the easement to the condemnor, Georgia Power Co., as contended by the appellant.
3. Enumeration of Error 4. Here complaint is made of portions of the charge instructing the jury to award the condemnees (1) 'the value of the property taken,' (2) on the basis of the 'amount of land taken' even though only an easement was taken. Again, the portions of the charge are taken out of context. It is quite true that a court should not charge on the value of land actually taken when no land is being taken but only an easement is being condemned. Ga. Power Co. v. Livingston, 103 Ga.App. 512(4b), 119 S.E.2d 802. However, in this case there was controversy as to the number of acres contained within the easement being condemned and the phrase, 'the amount of land taken,' was used by the trial judge in connection with the jury's making a determination of the size of the 'property or the easement taken.' Likewise, the phrase, 'value of the property taken,' is taken out of context. Review of the charge shows that this portion of the charge was directed toward the jury's determination of the amount of the condemnee's actual damages. Instructions on consequential damages immediately followed. No reversible error is shown.
4. Enumeration of Error 5. Complaint is made of the following excerpts from the charge regarding the elements of damages: 'First is the market value of the leasehold of the easement actually taken by the condemnor . . .' and 'the question to be determined by the jury is the amount to be awarded to the condemnees as compensation for the easement taken and consequential damages, if any, to the remainder of the leasehold.' Counsel for both the condemnor and condemnees excepted to the word 'leasehold' being given in charge. A review of the record does not reveal a contention by either party that a 'leasehold' is involved in the condemnation. There was no evidence pertaining to a leasehold. The trial judge did give a correct charege on damages near the conclusion of his charge....
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