Smith v. DeKalb County, 75332

• Decision Date: 22 October 1987
• Docket Number: No. 75332,75332
• Citation: 362 S.E.2d 435,184 Ga.App. 628
• Parties: SMITH et al. v. DeKALB COUNTY.
• Court: Georgia Court of Appeals

Page 435

362 S.E.2d 435

184 Ga.App. 628

SMITH et al. v. DeKALB COUNTY.

No. 75332.

Court of Appeals of Georgia.

Oct. 22, 1987.

William V. Hall, Jr., Neil L. Heimanson, Atlanta, for appellants.

Harmon W. Caldwell, Jr., Harry W. MacDougald, Atlanta, for appellee.

DEEN, Presiding Judge.

This appeal flows from the denial of a motion for a new trial after a jury verdict was rendered in appellants' favor and made the judgment of the court. DeKalb County originally filed a complaint condemning appellants' real property and an initial order and judgment were entered on the same day. The funds were later paid into court. Appellants appealed to the superior court and demanded a jury trial.

1. Appellants assert as error the court's charge to the jury that they could deduct consequential benefits from consequential damages when there was no evidence presented as to consequential benefits. The charge stated that "just and adequate compensation for the property condemned is the value of the property taken or used, or the damage done, and also the consequential damages, if any, to the property not taken or used, deducting from such consequential damages, if any, the consequential benefits to that property."

It is general law that the condemning authority must pay a condemnee just and adequate compensation for the land taken. In addition, when there is a partial taking, as there was in this case, the condemnee is entitled to any consequential damages to the remainder. OCGA § 22-2-62. However, any consequential damages are offset by any consequential benefits to the remainder. OCGA § 22-2-63; Department of Transp. v. Knight, 143 Ga.App. 748, 751, 240 S.E.2d 90 (1977).

In the instant appeal, the county's expert appraiser, Wallace E. White, testified: "In this case the road was widened and the subject property benefitted by that widening in terms of having a better and safer access to their property." White "did not measure [the value of] any special benefits because in [his] opinion there were no [consequential] damages to the remaining property." The condemnee's expert was of the opinion that there were consequential damages to the remainder in the amount of $22,500, but found no consequential benefits. Because there was some evidence of both, consequential damages and benefits, the trial court gave the charge which is now the basis of this objection. It is general law that where a party makes a claim for damages it is incumbent upon him to present evidence showing the amount in a manner in which a jury can calculate the award with a reasonable degree of certainty, for an award of damages cannot be based on guesswork. Lingo v. Kirby, 142 Ga.App. 278, 236 S.E.2d 26 (1977).

"However, where, as in the case sub judice, there was no evidence from which the jury could have formed a reasonable estimate of the amount or value of such benefits, it is error to charge the jury that they could reduce the amount of consequential damages to the remainder by the amount of special consequential benefits." Continental Corp. v. Dept. of Transp., 172 Ga.App. 766, 768...