Polk v. Fulton County
| Citation | 96 Ga.App. 733,101 S.E.2d 736 |
| Decision Date | 14 November 1957 |
| Docket Number | No. 36910,No. 2,36910,2 |
| Parties | G. C. POLK v. FULTON COUNTY |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
The court did not err in any of the rulings.
Fulton County, hereinafter called the plaintiff, brought a condemnation suit against G. C. Polk, hereinafter called the defendant, under chapter 36-11 of the Code of 1933, as amended. We will not set out the petition in detail.
The defendant answered the petition by alleging $3,500 improvements, income from the property of $5,004 gross per year, and alleging the value of the property to be three times the gross annual income, or $15,000.
Assessors were named and after a hearing before the assessors, the award was for $9,000 for the property taken and $500 consequential damages to the remaining property. The plaintiff was dissatisfied with the award of the assessors and requested a trial by jury, which resulted in a finding of $5,400 for the property taken and no consequential damages to the remaining property.
The defendant filed a motion for new trial on the statutory grounds and thereafter added 7 special grounds by amendment. The court denied this motion, and the case is here assigning error on that ruling.
E. H. Stanford, Atlanta, for plaintiff in error.
Harold Sheats, Paul H. Anderson, W. Neal Baird, Atlanta, for defendant in error.
1. The evidence is voluminous. We see no need to detail it here. Suffice it to say that much of the evidence was adduced from experts and was sufficient to sustain the verdict of the jury.
2. Special ground 1 of the amended motion for new trial complains that the court inaccurately charged the contentions of the parties in that he stated that the condemnee 'denies that the plaintiff has offered him just and adequate compensation' and 'Fulton County contends that it has offered, and is ready, able and willing to pay what it considers to be just and adequate compensation' when in fact the petition did not allege or the defendant deny that such compensation 'had been offered' but rather alleged that 'it is willing to pay' just and adequate compensation. Special ground 6 complains that the plaintiff failed to prove substantially the allegations of its petition in that it failed to prove willingness to pay, that the lands sought to be condemned are a part of a proposed public highway essential to public welfare, or that Fulton County has determined by proper action the necessity for such construction. The agreement of the parties at a pretrial conference under the provisions of Code, § 81-1014 limits the issues for trial to those not disposed of by agreement, and stipulates that the sole issue for jury determination is confined to value of property and consequential damages and benefits.
Accordingly, the slight misstatement as to the contentions of the parties, as well as the failure to prove certain allegations of the petition are entirely immaterial and these grounds are without merit.
3. It is contended by special ground 2 that the charge: 'When the defendant makes affirmative allegations in its answer, the law places the burden of proof on the defendant likewise to prove by a preponderance of the evidence that [such] allegations are true,' while a correct statement of law, is not adjusted to the case, in that no cross-action was filed by the defendant. Code, § 38-103 provides: 'The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.' (Emphasis added.) See also Hanover Fire Ins. Co. v. Pruitt, 59 Ga.App. 777(1), 2 S.E.2d 123. Since it was essential to the defense for the condemnee to show that the value of the property was as contended by him rather than as contended by the plaintiff, the charge was entirely proper.
4. Special grounds 3 and 4 complain of the italicized addition by the court to an excerpt from the charge, the first sentence of which was given as requested by the defendant: This charge, eliminating the last sentence, would make replacement value the equivalent of 'just and adequate compensation' as used in our Constitution, which it is not. The true measure of damages as set out in Housing Authority of Savannah v. Savannah Iron & Wire Works, 91 Ga.App. 811, 87 S.E.2d 671, 673, (and as also charged substantially by the court in this case), is as follows: The dissents in the Housing Authority of Savannah case are on the proposition that even this rule is too broad and that fair market value alone should be the criterion. To further extend the measure of damages so as to allow replacement value alone to become the standard for compensation would be contrary to the rule followed in this and the other States. The plaintiff in error relies on Elbert County v. Brown, 16 Ga.App. 834, 86 S.E. 651, but that case only goes to the extent of pointing out that there may be special circumstances where just compensation is not afforded unless it is sufficient to allow for repayment or replacement of like property. In that case the property involved was a specially selected group of stones designed for a wall, difficult of duplication and involving loss of time of selection and hauling so that its value...
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