Georgia Power Co. v. Manley

• Decision Date: 06 September 1933
• Docket Number: 22547.
• Citation: 170 S.E. 543,47 Ga.App. 431
• Parties: GEORGIA POWER CO. v. MANLEY.
• Court: Georgia Court of Appeals

170 S.E. 543

47 Ga.App. 431

GEORGIA POWER CO. v. MANLEY.

No. 22547.

Court of Appeals of Georgia, First Division

September 6, 1933

Syllabus by the Court.

$257.89 for damages consequent on flooding narrow strip extending about 400 yards within banks of creek along edge of condemnee's 258-acre tract held not excessive.

New trial will not be granted because of questions propounded by judge to witness under examination, absent timely motion for mistrial.

Ground complaining of refusal to rule out all testimony of witness after witness testified on cross-examination that he did not know market value of land condemned, held too general for consideration.

In condemnation proceeding, court's failure, without request, to charge regarding difference between easement sought by condemnor and taking in fee simple, held not error.

1. The evidence supports the verdict, and the verdict is not so large as to show bias or prejudice on the part of the jury.

2. "In the absence of a timely motion for a mistrial, a new trial will not be granted because of questions propounded by the trial judge to a witness under examination. Whether the asking of the questions would have amounted to error requiring a reversal, had a motion for mistrial been promptly made, need not be decided." Under this rule, special grounds 4 and 6 will not be considered.

3. Special ground 5 is too incomplete for this court to consider.

4. Special ground 7 is merely an amplification of the general grounds.

5. There is no merit in the assignment of error in special ground 8 that the court erred in failing, without any request so to do, to charge the jury "with reference to the difference between the easement sought *** and the taking in fee simple."

6. The excerpt from the charge of the court complained of in special ground 9 is not susceptible of the criticism that it expressed the court's opinion "that the defendants were entitled to recover damages, and the jury, under this charge, were compelled to find a verdict for some damages to the remainder of the property."

Error from Superior Court, Putnam County; James B. Park, Judge.

Condemnation proceeding by the Georgia Power Company against J. W. Manley. To review the judgment, after its motion for a new trial was overruled, condemnor brings error.

Affirmed.

Colquitt Parker, Troutman & Arkwright, of Atlanta, Orrin Roberts and Roberts & Roberts, all of Monroe, and M. F. Adams, of Eatonton, for plaintiff in error.

MacINTYRE Judge.

Desiring to construct a power dam on the Oconee river, the Georgia Power Company sought to procure by condemnation proceedings "the perpetual right to flood or flow back water in and upon" a very narrow strip of land constituting eleven one-hundredths of an acre, extending for about 400 yards within the banks of a creek along the edge of a 258-acre tract of land belonging to J. W. Manley and others. Upon an appeal from the award of the assessors, a jury found a verdict for the defendants for the "sum of $1.65 for eleven one-hundredths acre," and for "$257.89 for consequential damages." The Georgia Power Company moved for a new trial, upon the general and certain special grounds, and it excepts.

The contention of counsel of plaintiff in error in regard to the general grounds is thus expressed in their brief: "We respectfully insist upon the first three general grounds of the motion, as the evidence does not warrant the large verdict rendered in this case, the damage being nominal and the value of the land practically nothing, and the weight of the evidence is strongly against the verdict, which is so large as to indicate undue bias in favor of the condemnee."

It appears from the record that the banks of said creek are nearly vertical, and that the effect of banking up the water by said dam would be to greatly retard the flow of the water and to raise the level of the water in the creek about 4 feet. J. W. Manley swore in part: "The market value of the...