Hard v. Housing Authority of City of Atlanta, No. 21930

• Court: Supreme Court of Georgia
• Writing for the Court: DUCKWORTH
• Citation: 132 S.E.2d 25,219 Ga. 74
• Parties: Elizabeth McCarty Dunson HARD v. The HOUSING AUTHORITY OF the CITY OF ATLANTA.
• Docket Number: No. 21930
• Decision Date: 29 May 1963

Page 25

132 S.E.2d 25 219 Ga. 74 Elizabeth McCarty Dunson HARD
v.
The HOUSING AUTHORITY OF the CITY OF ATLANTA. No. 21930. Supreme Court of Georgia. May 29, 1963.
Rehearing Denied June 10, 1963.

Page 26

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 [219 Ga. 75] 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

Page 27

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 [219 Ga. 76] 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,...