Gunn v. Department of Transp.
| Decision Date | 09 September 1996 |
| Docket Number | No. A96A1093,A96A1093 |
| Citation | 222 Ga.App. 684,476 S.E.2d 46 |
| Parties | GUNN v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Court of Appeals |
Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, William R. Jerles, Jr., for appellant.
Michael J. Bowers, Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, Sell & Melton, Michelle W. Johnson, John A. Draughon, Macon, for appellee.
HAROLD R. BANKE, Senior Appellate Judge.
As part of its Golden Isles Parkway project, the Department of Transportation ("DOT") condemned 23.726 acres and obtained certain easement rights to rural Houston County land belonging to Otis Gunn. Gunn contested the DOT's offer of $25,200 for the taking, and contended that fair compensation should encompass both surface and subsurface value, which included large subterranean limestone deposits. On appeal, Gunn challenges one jury charge as harmfully misleading and the denial of the jury's request to rehear the testimony of one of his experts.
The sole issue for jury determination was whether the DOT's compensation offer which included no remuneration for the known limestone deposits on Gunn's land was fair and constitutional. DOT retained an engineering firm which drilled ten holes in the right-of-way and confirmed the presence of limestone underneath. Although it is undisputed that the property taken contained millions of tons of limestone, DOT contended that because the limestone was not being mined on the date of the taking, no purchase offer was then pending, and no plans to mine the limestone had been formulated as of March 13, 1991, Gunn was precluded from any recovery for the value of the limestone.
The DOT's only witness, a real estate appraiser who admitted he had no expertise in evaluating limestone deposits, testified that the limestone added no value to the condemned property and that the highest and best use of the property acquired was agricultural or timberland use. Assigning no value to the limestone, he testified that the property's fair market value on the date of taking was $18,000, based on comparable agricultural land or timberland. Gunn's experts, who took the presence of limestone into account, valued the land exponentially higher. Gunn appeals the jury's verdict of $23,500. Held:
1. Gunn contends the trial court erroneously instructed the jury on the theory of reasonable probable use. Gunn objected to the following charge: "In regard to value, you should determine whether there is a reasonable probability that the land and the limestone in the ground could have been used as contended as of ... March 13th, 1991." Gunn argued that the charge was erroneous and misleading because it was based on Dept. of Transp. v. Benton, 214 Ga.App. 221, 447 S.E.2d 159 (1994), a case not involving mineral deposits. He claimed that Benton did not apply because it dealt with speculation about the possible future use of condemned land, rather than the known, unalterable fact of limestone deposits in the land at issue.
As in Dept. of Transp. v. Sharpe, 219 Ga.App. 466, 468(2), 465 S.E.2d 695 (1995) (cert. granted) we again find Benton has no application to mineral deposit cases. In Benton, the trial court erroneously allowed speculative testimony concerning the hypothetical future development of the condemned land as subdivision lots. Id., Benton turned on the issue of prospective future use of the land. Here, as in Sharpe, supra, the issue is the present value of the land which includes a known natural resource at the time of taking.
Georgia law on the method of valuing land containing mineral or soil deposits suitable for extraction is clear. See, e.g., Williams v. Mayor, etc., of Carrollton, 195 Ga.App. 590, 394 S.E.2d 389 (1990) (). The presence of subterranean minerals is a relevant factor to be considered in determining the overall value of property. Id. at 591(2), 394 S.E.2d 389. See generally State Hwy. Dept. v. Robinson, 103 Ga.App. 12, 15(2), 118 S.E.2d 289 (1961). See Ga. Power Co. v. Owen, 207 Ga. 178, 179, 60 S.E.2d 436 (1950). Land containing valuable deposits may be of greater market value than land without such deposits, but the land and the deposits constitute one subject matter and there cannot be separate recovery for the land and also for the deposits. Southern R. Co. v. Miller, 94 Ga.App. 701, 704(1), 96 S.E.2d 297 (1956).
A Benton-type analysis is inappropriate under these facts. Instead, "[t]he only relevant inquiry [is] the overall value of the property on the date of taking with the presence of the limestone deposits being taken into account." Sharpe, 219 Ga.App. at 468, 465 S.E.2d 695. Gunn was entitled to recover the fair market value of the land as enhanced by the limestone. Williams, 195 Ga.App. at 591(2), 394 S.E.2d 389.
The disputed instruction improperly made the jury's consideration of the limestone's value conditional on its determination of the reasonable probability as to whether the land could have been mined as of March 13, 1991. This allowed the jury to determine the value of Gunn's land on the date of the taking without ascribing any value to the limestone deposits if the jury concluded there was no reasonable...
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