Hard v. Housing Authority of City of Atlanta, 21930
| Decision Date | 29 May 1963 |
| Docket Number | No. 21930,21930 |
| Citation | 132 S.E.2d 25,219 Ga. 74 |
| Parties | Elizabeth McCarty Dunson HARD v. The HOUSING AUTHORITY OF the CITY OF ATLANTA. |
| Court | Georgia Supreme Court |
Syllabus by the Court
Obedience to the command of Art. I, Sec. III, Par. I of the Constitution (Code, Ann. § 2-301; Const. of 1945) demands that when private land is taken for public purposes, the value of such land at the time of taking must be paid, and that evidence showing an enhancement in its value resulting from the previously announced intention of the condemnor to take an area which includes the subject land for urban renewal is admissible, and it was not error to charge the jury to consider such evidence in fixing its value.
By writ of certiorari to the Court of Appeals this court has for review the rulings and the judgment of that court that a charge of the lower court was error which, in substance instructed the jury that the owner of land taken for public use can recover therefor an enhanced value which it had acquired merely by reason of the taking or as a result of the improvement which the taking of that particular land for the specific purposes for which it is taken contemplates. This case was reported in the Court of Appeals in Housing Authority of the City of Atlanta v. Hard, 106 Ga.App. 854, 128 S.E.2d 533. Exception is taken to the rulings and the judgment of the Court of Appeals in their entirety. The application for the grant of the writ in particular points out the following erroneous rulings of law and fact which the applicant complains of which we summarize here: (1) 'In such a case no matter what improvements the condemnor contemplated putting on the land, or later put, they could not cause a rise in the value of the area.' [Direct ruling of the court] (2) 'Only the elements involved before the announced proposal to condemn could be used in determining value.' [Direct ruling of the court.] (3) Upon the announcement by a condemning authority that certain property is to be condemned, the property, as a matter of law, ceases to have any value except as to the condemning authority and the value is to be determined and the value to be paid is to be established without reference to elements generally affecting market value, and particularly without reference to events transpiring in the period from the time of the announcement of the taking until the date that the property is actually taken, the market value to be determined as of the date of the announcement rather than as of the date of the actual taking. [Alleged meaning of the ruling by the court summarized by the applicant] (4) The Court of Appeals erroneously misconstrued, misapplied and failed to follow controlling opinions of this court found in this regard in Central Georgia Power Co. v. Mays, 137 Ga. 120, 72 S.E. 900; and Gate City Terminal Co. v. Thrower, 136 Ga. 456, 71 S.E. 903, in which this court has held that the owner of land taken for public use is entitled to have the jury take into consideration any enhancement of the value of land which it has acquired by reason of the taking or proposed taking, or as a result of the anticipated improvements to be placed on the property. (5) The Court of Appeals has refused to follow other well-established rules found in the opinions of the Supreme Court and the Court of Appeals, and in the Constitution of Georgia, Art. I, Sec. III, Par. I (Code, Ann. § 2-301) and Art. I, Sec. I, Par, II (Code Ann. § 2-102), that when private property is condemned for public use the owner is entitled to receive just and adequate compensation as of the date of the taking and not as of the date of the announcement of the taking, and the value of the property should be fixed at the time of its taking. (6) The Court of Appeals has failed to follow the principle of stare decisis in refusing to follow its own decision in the case of Housing Authority of the City of Marietta v. York, 106 Ga.App. 41, 126 S.E.2d 246, by failing to follow the principle of law announced in that court or in overruling that case.
As shown by the record the evidence discloses that the market for land in the area has been stagnant for a number of years because of the proposed threat of condemnation; but because of the building of an expressway creating a perimeter separating this property from other undesirable property, its value has been enhanced; further, the actual taking of the undesirable property under the urban renewal program in the rear of this property has further enhanced its value because of the cleaning up of the area; and the improvements and anticipated improvements, including the use to be made by the condemning authority has increased the value of the entire area, including the value of the property of the condemnee. Under this evidence, the charge and the rulings of the Court of Appeals, we have for review, the assignments of error shown above.
Hurt, Baird & Peek, J. Corbett Peek, Jr., Atlanta, for plaintiff in error.
David H. Gambrell, Charles Kirbo, King & Spalding, Charles L. Gowen, John Izard, Jr., R. Byron Attridge, Atlanta, for defendant in error.
Eugene Cook, Atty. Gen., Carter Goode, E. J. Summerour, Asst. Attys. Gen., Harold Sheats, Standish Thompson, Atlanta, R. M. Reed, Marietta, Edward B. Liles B. N. Nightingale, Brunswick, Wm. G. Grant, Robert W. Spears, Heyman, Abram, Young, Hicks & Maloof, Atlanta, for party at interest not party to record.
The one question for decision is whether or not, upon the trial of a condemnation proceeding on appeal, evidence, showing that the value of the subject property has been enhanced, by the general knowledge, for a number of years that a large area, including it, would be taken for urban renewal, and much of the other property has been taken and slums cleared therefrom, is admissible fixing its value. The demand of the Constitution, Art. I, Sec. III, Par. I, that 'just and adequate compensation' be first paid is imperative. Code Ann. § 2-301; Const. of 1945. It means that such payment cover its value at the time of taking.
It would seem that the numerous decisions of this court and the Court of Appeals, including Young v. Harrison, 17 Ga. 30; Young v. Harrison, 21 Ga. 584, 591; Gate City Terminal Co. v. Thrower, 136 Ga. 456, 71 S.E. 903; Central Georgia Power Co. v. Cornwell, 141 Ga. 643, 81 S.E. 882; Smith v. City of Atlanta, 22 Ga.App. 511, 96 S.E. 334; Georgia Power Co. v. Carson, 46 Ga.App. 612, 167 S.E. 902; State Highway Board v. Shierling, 51 Ga.App. 935, 181 S.E. 885; Housing Authority of the City of Dublin v. Curry Realty Co., Inc., 86 Ga.App. 527, 71 S.E.2d 898; and Housing Authority of the City of Marietta v. York, 106 Ga.App. 41, 126 S.E.2d 246; all of which uniformly conforming to the Constitution, should put at rest all questions concerning the time and manner of fixing the value of private property when taken for public purposes. But the decision of the Court of Appeals in the present case is a complete departure from its own decisions, as well as the decisions of this court. The York Case, supra, is identical with the instant case. Both involve actions by the respective housing authorities in taking private property for urban renewal. Both involve land included in the urban renewal, and both involve the identical question stated at the beginning of this opinion. There, a charge in the exact language of Gate City Terminal Co. v. Thrower, 136 Ga. 456(3), 71 S.E. 903, supra, was held not to be error. That court now attempts to distinguish that case upon the ground that, there, evidence of enhanced value, because of the known plan for including the subject land in the urban renewal, was admitted without objections, while, here, there was no such evidence. There is testimony in this record as follows: 'And it had affected its value with the tearing out of all the rest of this property, and not knowing what was going in but knowing that it was to be cleaned up and taken up did affect and did increase the value of the entire area.' And to the question asked of the same witness on cross-examination: 'Now it is your testimony, I believe, that the cleaning up of this area and the knowledge that urban renewal was coming through here had increased or improved values, is that what your testimony is?' The answer: 'Generally, yes.' Thus it would appear that the sole basis for the distinction is invalid.
Looking now to what this court has ruled, we consider first Young v. Harrison, 17 Ga. 30(1) as follows: 'Held, that the value...
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