Housing Authority of City of Atlanta v. Hard

• Decision Date: 17 October 1962
• Docket Number: No. 1,No. 39685,39685,1
• Citation: 128 S.E.2d 533,106 Ga.App. 854
• Parties: HOUSING AUTHORITY OF the CITY OF ATLANTA v. Mrs. Elizabeth D. H. HARD et al
• Court: Georgia Court of Appeals

Page 533

128 S.E.2d 533

106 Ga.App. 854

HOUSING AUTHORITY OF the CITY OF ATLANTA v. Mrs. Elizabeth D. H. HARD et al.

No. 39685.

Court of Appeals of Georgia, Division No. 1.

Oct. 17, 1962.

Rehearing Denied Nov. 8, 1962.

Syllabus by the Court

'The owner of land taken for public use cannot 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' and it was error for the court to so instruct the jury.

This case arises from an exception by The Housing Authority of the City of Atlanta, Georgia, to the overruling of its motion for a new trial in an appeal to a jury from the award of the assessors in a condemnation proceeding instituted pursuant to the provisions of Code § 36-601 et seq. The taking proposed by the plaintiff's petition was a total taking and the sole issue was the value of the defendant's property. The purpose of the taking was for urban re-development. The defendant's property, and that surrounding it, having been designated by the Board of Aldermen of the City of Atlanta to be a slum area. The general grounds have been abandoned and two special grounds are here for the determination of their merit.

King & Spalding, David H. Gambrell, Joseph R. White, Jr., Atlanta, for plaintiff in error.

J. Corbett Peek, Jr., William M. Pate, Atlanta, for defendants in error.

FELTON, Chief Judge.

The first amended ground of the motion for new trial excepts to the following charge of the court: 'I charge you that the law of this State provides that if, at the time the market value of the property sought to be condemned was to be estimated, it was known or anticipated that certain improvements would be made in the locality where the property was situated, and this fact served to enhance the market value of the property, the owner would be entitled to the actual market value as affected by reason of the fact that it was known or anticipated that such improvements would thus be made. This is true though the projected improvements were to be made by the condemning authority. In this case, I charge you that if you find from the evidence in this case that certain improvements had been made or that it was anticipated that certain improvements would be made in the locality where the property of Mrs. Elizabeth Hard was situated and that these improvements or anticipated improvements would serve to increase the market value of Mrs. Hard's property, then in that event Mrs. Hard would be entitled to the actual market value as affected by reason of the fact that it was known or anticipated that such improvements would thus be made. This is true even though the anticipated or projected improvements were to be made by the Housing Authority of the City of Atlanta.' A witness for the condemnee testified that property in the area had been under threat of condemnation for highway and urban renewal purposes for a number of years and the market was stagnant as a result of that fact. Then followed these questions and answers: 'Mr. Peek: Q. Let me ask you then, Mr. Maddox, in your opinion would the proposed overall development of the Butler Street Urban Renewal Area have any effect upon the market value of other property in the vicinity that was not condemned? A. Very definitely would. It would have increased the value by tearing out all of the very low grade property in behind and in the area down there (indicating), it would have increased the value of all the other properties surrounding there, too. Q. Had Mrs. Hard's property not been in the area that was condemned, in your opinion would this proposed development have had any effect on the market value of her property? A. It would have. It already had this effect, that the expressway had cut it off from what you might say the worst portion of this before the urban redevelopment came in, and though there was some small pieces of property still off it, low class colored housing in behind this, there was very little of it and it had established a perimeter line you might say for that type of development. And it had effected 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 effect and did increase the value of the entire area.' Considering the question and the answer the most rational interpretation of this testimony is that the anticipation of the Urban Renewal Development improved property values outside the area which...