Hous. Auth. Of City Of Augusta v. Holloway, 28580.

• Decision Date: 01 November 1940
• Docket Number: No. 28580.,28580.
• Parties: HOUSING AUTHORITY OF CITY OF AUGUSTA. v. HOLLOWAY.
• Court: Georgia Court of Appeals

11 S.E.2d 418

HOUSING AUTHORITY OF CITY OF AUGUSTA.

v.HOLLOWAY.

No. 28580.

Court of Appeals of Georgia,

Division No. 2.

Nov. 1, 1940.

Syllabus by the Court.

The court did not err in overruling the motion for new trial.

EELTON, J., dissenting.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Condemnation proceeding by the Housing Authority of the City of Augusta against M. K. Holloway. To review an adverse judgment, plaintiff brings error.

Affirmed.

Henry G. Howard, of Augusta, for plaintiff in error.

Fleming & Fleming, of Augusta, for defendant in error.

PER CURIAM.

The only assignment of error relied on by the plaintiff in error is upon the following excerpt from the judge's charge: "I charge you, gentlemen of the jury, that under the law, where a person has the right of eminent domain as in this case, you can take the other fellow's property, but you must give him just and adequate compensation for it, and in this case, gentlemen of the jury, the valuation is not determined by the market value of the property, but it is what was that property, house and lot, when taken, what was the actual value of that property to the owner". The plaintiff in error contends that this portion of the charge was confusing to the jury in that it prohibited them from considering all the factors going to make up the market value of the property, and confined them to a consideration of what it was worth to the owner.

Private property can not be taken or damaged for public purposes without just and adequate compensation being first paid. Const, art. 1, § 3, par. 1. This constitutional provision does not necessarily restrict the owner's recovery to market value as the term is sometimes used. The owner is to be paid just and adequate compensation for his property, thatis, the value of the property to him, not its value to the condemnor. The measure of damages for property taken by the right of eminent domain being compensatory in its nature is the loss sustained by the landowner, taking into consideration all the purposes for which the property is available. Generally speaking, the measure of damages is the market value of the property to be taken, and when this would give just and adequate compensation to the owner this rule should be applied. But it was held by this court in Elbert County v. Brown, 16 Ga.App. 834, 847(8), 86 S.E. 651, 656: "We have already adverted to the measure of recovery as included within the words 'just and adequate compensation.' We have also pointed out that in some instances one might not be justly compensated for the taking of his property unless he was awarded an amount adequate to repay the cost of the particular property or to replace just such property as was taken from him; and hence it is only necessary to say, in regard to the rulings and charge of the trial judge upon the measure of damages of which complaint is made, that the constitutional provision providing adequate compensation for private property taken for public use does not restrict the owner of the property to a recovery of the market value. Adequate compensation for property which the owner has designed for a special use, and of which he has been deprived for the public benefit without his consent, may include the cost of the article or its value to the owner for the particular purpose for which he designed to use it, or for which it could be used. Atlantic Coast Line R. Co. v. Postal Telegraph Co., 120 Ga. 268, 280, 281, 48 S.E. 15, 1 Ann.Cas. 734; Harrison v. Young, 9 Ga. 359; [Mississippi & R. River] Boom Company v. Patterson, 98 U.S. 403, 25 L.Ed. 206."

The portion of the charge excepted to in the present case, when considered in connection with the entire charge and the theory under which the case was tried, does not require a reversal of the case. The Housing Authority of the City of Augusta was seeking to condemn the defendant in error's property, consisting of her dwelling house and lot and other improvements thereon. The gist of the testimony introduced upon the trial of the case as to the value of the property sought to be condemned related to its value as a home for the owner, and what it would cost to replace it for her in the same locality where her property was located. In fact, during the trial, in a colloquy between the court and the attorney for the Housing Authority, condemnor, it was stated by the court and agreed to by counsel that the rule as to the measure of damages was the "actual value of the property to the owner" or "its equivalent, " that is, the actual value of that property to the owner, or what it would cost to replace it in the same locality, not the market value. Under the facts and circumstances of this case, the portion of the charge excepted to was not harmful to the plaintiff in error, and it can not now be heard to complain of such charge.

Judgment affirmed.

STEPHENS, P. J, and SUTTON, J, concur.

FELTON, J., dissents.

FELTON,...