Smith v. State Highway Dept., 39180
| Decision Date | 29 January 1962 |
| Docket Number | No. 39180,No. 2,39180,2 |
| Parties | H. C. SMITH, Sr. v. STATE HIGHWAY DEPARTMENT |
| Court | Georgia Court of Appeals |
Syllabus by the Court
In an appeal to the superior court from the award of the assessors in a condemnation proceeding, it is error for the court to charge the jury on the question of consequential benefits where there is no evidence that there will be any consequential benefits to that portion of the land not taken.
This is a condemnation proceeding in which both the condemnor and the condemnee appealed from the award of the assessors in the amount of $22,026. At the trial of the appeal in the superior court the jury returned a verdict for $7,755, for which amount judgment was entered. The court thereafter denied the condemnee's amended motion for new trial, and error is assigned thereon.
Merritt & Pruitt, Glyndon C. Pruitt, Buford, for plaintiff in error.
Eugene Cook, Atty. Gen., Carter Goode and Paul Miller, Asst. Attys. Gen., Dudley Hancock, Norcross, for defendant in error.
1. In an appeal to the superior court from the award of the assessors in a condemnation proceeding, it is error for the court to charge the jury on the question of consequential benefits where there is no evidence that there will be any consequential benefits to that portion of the land not taken. Garden Parks, Inc. v. Fulton County, 88 Ga.App. 97(3), 76 S.E.2d 31; Stanfield v. State Highway Dept., 95 Ga.App. 452(1), 98 S.E.2d 40. While two witnesses for the condemnor testified in the instant case that the condemnee's remaining property would be benefited by the construction of the expressway on that portion of the condemnee's property taken, neither of these witnesses testified specifically as to the amount of enhancement in value or even the percentage of increase in the value of the property. Under the decision of this court in Andrus v. State Highway Dept., 93 Ga.App. 827, 829, 93 S.E.2d 174, affirmed, State Highway Dept. v. Andrus, 212 Ga. 737, 95 S.E.2d 781, the testimony in this case was insufficient to authorize a charge on consequential benefits, since there must be specific evidence as to the consequential benefits from which the jury could reasonably estimate the amount of improvement before they could deduct it from the consequential damages.
While this court is bound by the decision fo the Supreme Court in the Andrus case, the writer of this opinion is inclined to agree with the views...
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