Jordan v. Department of Transp., 71063

• Decision Date: 17 February 1986
• Docket Number: No. 71063,71063
• Citation: 342 S.E.2d 482,178 Ga.App. 133
• Parties: JORDAN et al. v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

Page 482

342 S.E.2d 482

178 Ga.App. 133

JORDAN et al. v. DEPARTMENT OF TRANSPORTATION.

No. 71063.

Court of Appeals of Georgia.

Feb. 17, 1986.

Rehearing Denied March 7, 1986.

Earle B. May, Jr., Atlanta, for appellants.

Charles C. Pritchard, Robert O. Smith, Sp. Asst. Attys. Gen., for appellees.

SOGNIER, Judge.

Henry J. Jordan and others bring this appeal from the jury verdict awarding them the sum of $285,000 as just and adequate compensation for 7.377 acres of property condemned by the Department of Transportation.

1. Appellants contend the trial court erred by refusing to allow testimony by appellant Jordan concerning actual prior sales of property to various condemning authorities as among the factors Jordan considered in arriving at his non-expert opinion. " 'It is true that the courts of this state have long held that sales of land to condemning authorities are inadmissible as evidence in condemnation proceedings on the issue of the value of the land sought to be condemned. [Cits.]' [Cit.] '[T]his general rule [is] based upon the consideration that in such transactions neither party is necessarily free from compulsion--the necessity to acquire as to the one party and the positive necessity to give up on the part of the other.' Ga. Power Co. v. Brooks, 207 Ga. 406, 410 (62 SE2d 183)." Collins v. MARTA, 163 Ga.App. 168, 170(7), 291 S.E.2d 742 (1982). This "valid historical and pragmatic basis" for the exclusion of evidence of land sales to condemning authorities, Oglethorpe Power Corp. v. Seasholtz, 157 Ga.App. 723, 724(1), 278 S.E.2d 429 (1981), is applicable to such evidence regardless whether the evidence of land sales to condemning authorities is sought to be introduced as direct evidence of value or as indirect evidence supporting a non-expert's opinion of value. While we have no disagreement with appellants' statement that unaccepted offers to purchase the condemned property, inadmissible as direct evidence of value, have been held admissible as indirect evidence in partial support of a non-expert's value opinion, see Sutton v. State Hwy. Dept., 103 Ga.App. 29, 32(4), 118 S.E.2d 285 (1961), we are not persuaded by appellants' argument that such offers to buy, lacking in any coercion as evidenced by the fact they were not accepted, are comparable in any way to forced sales made under compulsion to condemning authorities.

Therefore, we hold that sales of land to condemning authorities are inadmissible either as direct or indirect evidence in condemnation proceedings on the issue of the value of the land sought to be condemned and the trial court properly refused to allow Jordan's testimony concerning actual prior sales of property to various condemning authorities. See Collins, supra, 163 Ga.App. at 171(7), 291 S.E.2d 742.

2. Appellants contend the trial court erred by ruling inadmissible two executory contracts, dated December 1984, and 1985, respectively, for the sale of the remainder of appellants' property on the basis that, the taking having occurred in February 1980, the contracts were too remote in time and too speculative. In Dept. of Transp. v. Cochran, 160 Ga.App. 583(1), 287 S.E.2d 599 (1981), this court recognized that "[i]n condemnation cases where comparable sales are offered in evidence to explain the value testimony of expert witnesses, it is frequently held that mere options and other unaccepted offers to purchase or sell [comparable properties] are inadmissible as having no substantial probative value. [Cits.]" The trial court ruled in Cochran that while expert witnesses could not refer to mere options on comparable property, they could refer to and base opinions on contracts of sale even though not closed, treating them as sales for the purpose of comparable valuation. Id. at 584, 287 S.E.2d 599. While we are aware that Cochran held that, even if allowing the evidence was error it had been rendered harmless because the contract had closed by the time the appeal reached this court, nevertheless, we view the result in Cochran as sound and apply it in the case sub judice. Our examination of the two contracts reveals that they were not mere offers but constituted contracts of sale even though...