Schoolcraft v. DeKalb County
| Decision Date | 19 April 1972 |
| Docket Number | No. 1,No. 46972,46972,1 |
| Parties | William H. SCHOOLCRAFT v. DeKALB COUNTY |
| Court | Georgia Court of Appeals |
Curtis R. Richardson, Decatur, for appellant.
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Decatur, for appellee.
Syllabus Opinion by the Court
This is an in rem condemnation proceeding by DeKelb County to obtain a permanent avigation easement in, to, upon and over the land of the condemnee. Assessors were appointed who selected a third assessor. An award of $700 for the taking and $2,900 in consequential damages was made, and condemnor paid $3,600 into the registry of the court. Both condemnor and condemnee appealed from the award. A de novo trial was held before a jury for the sole purpose of deciding what amount of money is just and adequate compensation for the property condemned. Verdict was returned in favor of condemnee in the amount of $1,500 and condemnee appeals. Eight enumerations of error were filed and, as argued in condemnee's brief, four questions are presented to this court for determination, as follows: 1. Should the jury have been instructed that they could consider other legitimate uses which might be made of the condemned property? 2. Should the condemnee have been allowed to testify as to the value of the property taken and as to damage to or diminution in value of his remaining property? 3. Should evidence of flights of aircraft using the easement have been limited to those flights using only runway 20-L of the airport? 4. Did the lower court correctly enter judgment on the verdict, there being no evidence to show that title to the property was uncertain so as to authorize the proceeding in rem? Held:
1. The first complaint of the appellant is that the court refused to give a written request to charge which was the substance of Code § 36-505, to wit: '. . . in estimating the value of land when taken for public uses, it is not restricted to its argicultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated.' Such written request must be entirely correct, accurate, and must be adjusted to the pleadings, the law, and the evidence. New York Life Ins. Co. v. Thompson, 50 Ga.App. 413(1), 178 S.E. 389; McKinney v. Woodard, 94 Ga.App. 340(1), 94 S.E.2d 620; Childers v. Ackerman Construction Co., 211 Ga. 350(1), 86 S.E.2d 227; King v. Ellis, 104 Ga.App. 335, 336, 121 S.E.2d 815. It was error to refuse to give this written request inasmuch as there was some testimony that this was residential property and that there was an apartment complex and commercial property in the immediate vicinity. Further, an expert witness testified: '. . . and I considered also the possibility, but improbable, that at some future time it might lend itself to say industrial use for land purposes.' The test is whether the land sought to be condemned could be used for other purposes, and not whether the land would be used for other purposes. Moore v. State Highway Dept., 221 Ga. 392, 144 S.E.2d 747. See also State Highway Dept. v. Whitehurst, 109 Ga.App. 737, 137 S.E.2d 371; State Highway Dept. v. Cantrell, 119 Ga.App. 241(2), 166 S.E.2d 604.
2. A non-expert witness who has had an opportunity to form a correct opinion may testify as to his opinion of the market value of the property. Code § 38-1709; State Highway Dept. v. Clark, 123 Ga.App. 627(4), 181 S.E.2d 881; City of Atlanta v. Layton, 123 Ga.App. 432(4), 181 S.E.2d 313; Williams v. Colonial Pipeline Co., 110 Ga.App. 824, 140 S.E.2d 150; Gainesville Stone Co. v. Parker, 224 Ga. 819, 821, 165 S.E.2d 296; Schumpert v. Carter, 175 Ga. 860(1), 166 S.E. 436; Central Georgia Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387; Central Railroad & Banking Co. v. Skellie, 86 Ga. 686, 693, 12 S.E. 1017. Condemnee, appearing as a non-expert witness, was not allowed to give his opinion of the market value of the property taken. The witness testified he was fairly familiar with the value of property in the neighborhood, knew of rental values there, and had heard of sales of properties in said neighborhood, and had talked to tree experts, all of which would have qualified him to testify as to the damages to his property and to diminution of value of his property remaining after the taking. Market value is exclusively a matter of opinion even though expressed as a fact. It may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion. If it is based on hearsay this would go merely to its weight and would not be a ground for valid objections. Code § 38- 1709; Landrum v. Swann, 8 Ga.App. 209(1), 68 S.E. 862; Widincamp v. McCall, 25 Ga.App. 733(1), 104 S.E. 642; Gulf Refining Co. v. Smith, 164 Ga. 811(4), 139 S.E. 716; Powers v. Powers, 213 Ga. 461(2), 99 S.E.2d 818; Central Railroad & Banking Co. v. Skellie, 86 Ga. 686, 693, 12 S.E. 1017, supra; Sammons v. Webb, 86 Ga.App. 382, 386(4), 71 S.E.2d 832; Purser v. McNair, 153 Ga. 405(2), 112 S.E. 648. The court erred in excluding condemnee's opinion testimony as to the value of his property and damages thereto.
3. In counsel's examination of the condemnee the court limited the questioning of counsel as to the number of planes leaving the airport and taking off and coming over his house to those planes using Runway 20-L. Unquestionably, the easement was not taken for flights using Runway 20-L exclusively. It is true the condemnation proceeding made reference to this runway in a description of the location of the approach zone, but the easement was taken for the general operation of the entire airport, and without limitation as to airplanes using only this runway. Condemnor sought a perpetual easement for avigation purposes, in, to, upon and over, all of condemnee's property. The court erred in limiting the examination of the condemnee as to planes using Runway 20-L.
4. No objection was made by the condemnee to the in rem proceeding. To the contrary, he named an assessor and...
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