Simon v. Department of Transp.
| Decision Date | 18 March 1980 |
| Docket Number | No. 35770,35770 |
| Citation | 265 S.E.2d 777,245 Ga. 478 |
| Parties | SIMON v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Supreme Court |
Patrick J. Rice, Augusta, for appellant.
D. Field Yow, Augusta, Arthur K. Bolton, Atty. Gen., William C. Joy, Asst. Atty. Gen., for appellee.
We granted certiorari to consider the decision of the Court of Appeals in Dept. of Transp. v. Simon, 151 Ga.App. 807, 261 S.E.2d 710 (1979). In brief, the pertinent facts are as follows: Portions of Simon's property were condemned as were portions of property of an adjoining landowner. Simon appealed her award of damages and a jury awarded her substantially more. The Department of Transportation, hereinafter D.O.T., then appealed and the Court of Appeals reversed holding that the jury should not have been permitted to take into account the possibility that Simon's property was subject to a private condemnation because the government condemnation had landlocked the adjoining landowner. The Court of Appeals held that such damages had to be sought in a separate action against D.O.T.
We conclude that the decision of the Court of Appeals is well-considered and correct. The cases cited by Simon do not support her position that the jury must consider the "effect of the project" on the land. Rather, these cases are examples of the rule as stated by the Court of Appeals. "There are only two elements of damages to be considered in a condemnation proceeding: first, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner's property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned . . ." McArthur v. State Hwy. Dept., 85 Ga.App. 500, 69 S.E.2d 781 (1952) (Emphasis supplied.) Consideration of damages which arise from devoting the part of the land taken to the use for which it was taken is not the same as consideration of damages which arise from the entire "project." 1
The Court of Appeals acknowledges that a property owner may have a cause of action for damages accruing to his or her property arising out of the condemnation of another's property. The only question is, assuming that Simon can bring a separate suit for damages accruing to her land based on the condemnation of her neighbor's land can that suit be consolidated and tried in the initial condemnation action?
Though the law generally favors the prevention of a multiplicity of actions, it appears that condemnation law in Georgia rather strictly limits the relevant evidence in condemnation cases and therefore separate suits for different kinds of damages are not uncommon. In Ga. Power Co. v. Bray, 232 Ga. 558, 207 S.E.2d 442 (1974), Georgia Power condemned an easement over a piece of property jointly owned by a Mr. Mosley and a Mr. Bray. Mr. Bray individually owned a piece of property contiguous to the jointly owned property. In the trial of the condemnation case, the judge...
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...is taken and the devoting of it to the purposes for which it is condemned.” (Citation and punctuation omitted.) Simon v. Dept. of Transp., 245 Ga. 478, 478, 265 S.E.2d 777 (1980). See also Dept. of Transp. v. White, 270 Ga. 281, 282, 508 S.E.2d 407 (1998) ; Flo–Rob, Inc. v. Colonial Pipelin......
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...taking of the part which is taken and the devoting of it to the purposes for which it is condemned ...' [Cit.]" Simon v. Dept. of Transp., 245 Ga. 478, 265 S.E.2d 777 (1980) (Emphasis in original). Such consequential damage to the remainder, if sought, must be pursued during the proceedings......
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