Southern Ry. Co. v. Miller

• Decision Date: 30 November 1956
• Docket Number: Nos. 1,No. 36292,2,36292,s. 1
• Parties: SOUTHERN RAILWAY COMPANY v. Maud MILLER
• Court: Georgia Court of Appeals

Page 297

96 S.E.2d 297

94 Ga.App. 701

SOUTHERN RAILWAY COMPANY v. Maud MILLER.

No. 36292.

Court of Appeals of Georgia, Division Nos. 1, 2.

Nov. 30, 1956.

Syllabus by the Court

1. The value of land, and the value of deposits therein, constitute one subject matter, and there cannot be a recovery for the land as such and also for the value of the deposits.

2. The other points in relation to this case have been discussed fully in the body of the opinion and the principles involved will not be reiterated here.

This is a condemnation proceeding instituted by the Southern Railway Company, hereinafter called the plaintiff, against Maud Miller, hereinafter called the defendant. The proceedings were brought to condemn 3.97 acres of land which belonged to the defendant. It appears that the defendant purchased a tract of land consisting of 40 acres, on which was located the acreage sought to be condemned. There is no assignment of error on any phase of the proceedings until after the jury returned a verdict for the value of the land sought to be condemned and the consequential damages resulting from the condemnation of the 3.97 acres. The plaintiff filed a motion for new trial on the statutory grounds and thereafter added five special grounds.

Claude Driver, Buchanan, Matthews, Maddox, Walton & Smith, John W. Maddox, Rome, for plaintiff in error.

Donald B. Howe, Buchanan, for defendant in error.

GARDNER, Presiding Judge.

Since we are deciding that the judgment should be reversed on the special grounds, we will not discuss the evidence as related to the general grounds, as the facts may be different in another trial, should another trial be held.

1. Special ground 1 raises the issue as to whether the court erred in admitting the testimony, over objections of counsel for the plaintiff, of the witness Charlie Grace. Since this is so important, we feel that we should quote all of this special ground. Special ground 1 assigns error as follows: 'Because the following material evidence was illegally admitted by the court to the jury, over the objection of movant, to wit: 'As to what was the reasonable market value of that sand at that place, I answer that what we were figuring on getting for it when it was sold would be $4 a ton, and what we were going to pay for it was relative. As to what we were going to pay for it, I answer that we had arrived at a figure with Mr. Miller that would guarantee him $100 a month for this piece of property, to get sand and put up a plant on it, or 50 cents a ton for each ton of sand, whichever was greater. We were figuring on a ten-year proposition.'

'(a) Movant objected to the evidence as soon as and at the time it was offered, and then and there urged before the court the following grounds of objection: Counsel for defendant asked the following question: What was a reasonable value of the sand?

'Mr. Maddox: 'We object to that on the ground that the landowner is not permitted to show by piecemeal the value of the various elements that go to make up the full market value of the land. The only thing that is involved is the fair market value of the land. He can show what the nature of the land is and what various elements go to give it value, but under the law he is not permitted to give a separate value of all the separate items which go to make up the land so as to get the aggregate. There has not been a ruling in our State courts on that, but our Federal courts have universally held that. We say that this witness would not be able to testify as to the value of the sand deposits. If he knows, he can state the fair market value of the land as a whole, taking into consideration the sand that was there, but the ultimate question is, what was the fair market value of the land, and that's the only thing he could be permitted to testify.'

'(b) The defendant, Mrs. Maude Miller, offered such evidence.

'(c) The court overruled the objection and admitted the evidence as follows: The court: 'I make this ruling, that inasmuch as under our State law the jury is permitted to consider the land, the damage to the land, for any and all purposes, it might be appropriate. I overrule your motion in this way, by saying that this evidence is admissible as a circumstance to prove the value of the whole.'

'(d) Said evidence objected to was immediately preceded by the following evidence: 'We estimated it to be between 1,000 and 1,200 yards of sand there. A cubic yard I believe is 2,640. There would be approximately a ton and a quarter to the yard.'

'(e) The evidence was material, prejudicial and hurtful to the condemnor for the reason that it shows a separate value of only one of the many elements that go to make up the fair market value of the property condemned, is part of a pattern of testimony which permits the condemnee to give a separate value to each of such elements so as to get an aggregate of the values of all of such elements, although the value attributed to some of the elements necessarily excludes the value given to other elements, since some uses of the property necessarily exclude other uses, and such aggregation of the separate values of the various uses of the property is not the proper way of proving the value of the land condemned. To permit the value to be arrived at by such a method, allows a higher value to be placed upon the property than the fair market value thereof.

'(f) The name of the witness whose testimony is alleged to have been illegally admitted over said valid objection is Charlie Grace.

'(g) Movant avers that the inadmissibility of the evidence was beyond doubt.'

We call attention to United States ex rel. and to Use of Tennessee Valley Authority v. Phillips, D.C., 50 F.Supp. 454, which originated in Georgia. In that case Judges Underwood, Russell and Lovett, held: 'The compensation to be awarded for land condemned by the United States is not to be determined by adding the values of various uses to which the land taken is adapted.' See also Atlanta Terra Cotta Co. v. Georgia Ry. & Electric Co., 132 Ga. 537, 64 S.E. 563. We have read carefully the testimony of the witness Grace and we find that he never testified as to the market value of the 3.97 acres of land at the time of the condemnation. We understand that all elements and uses of the land may be taken into consideration to determine the market value of the land taken and the consequential damages to the land not taken. However, under this sort of procedure, a witness may not be permitted to testify separately as to the value of each element. From the testimony of the witness Grace it will be noted that it was only a mathematical calculation to determine that the said deposit was worth from fifty to sixty thousand dollars, not at the time the land was sought to be condemned, but previous to that time. While we have called attention to Atlanta Terra Cotta Co. v. Georgia Ry. & Electric Co., supra, and quoted therefrom, we realize that the case was reversed, perhaps, on another principle of law. Nevertheless the Supreme Court, during the course of the opinion, stated that the fact had been established that land containing clay deposits (the same as sand deposits in the instant case) may be of greater market value than land without clay deposits, but that the land and the deposits constitute one subject matter and there cannot be a recovery for the land as such, and also for the clay deposits. For the trial court to deal with the sand deposits and their value covering the time mentioned by the witness Grace, was erroneous, and the court committed reversible error in allowing this evidence to be considered by the jury.

2. Special ground 2 assigns error as follows: 'Because the following material evidence was by the court illegally admitted to the jury and permitted to remain in the record and before the jury for consideration, over the motion of the movant to exclude the same. 'As to what was the reasonable market value of that sand at that place, I answer that what we were figuring on getting for it when it was sold would be $4 a ton, and what we were going to pay for it was relative. As to what we were going to pay for it, I answer that we had arrived at a figure with Mr. Miller that would guarantee him $100 a month for this piece of property, to get sand and put a plant on it, or 50 cents a ton for each ton of sand, whichever was greater. We were figuring on a ten-year proposition. So we left there and didn't do anything till the end of 1953, Mr. Mendelson decided to retire and wanted to sell me the plant, then I decided that I would need it down there, all the small towns down there and everything, with no competition, to put the plant down there, and I got to investigating it and got ready to draw up the contract and found out that the railroad was going to build a railroad right across this dam. That's the reason I didn't go ahead with it, because I found out that the railroad was going to condemn it. I was down there sometime in December last year. As to whether our understanding that we had with him was made back there in 1951, I answer, 'No', '53--'Yes', but we didn't take it. As to whether he made us an offer in 1951, I answer, 'No', that was what we offered him, to put the plant down there. We made an offer to him. As to whether he didn't take it, I say, we decided not to put the plant there at that time. So actually there was no agreement, because we didn't go through with it at that time. In 1953, at the end of '53, when Mr. Mendelson decided to quit the business, I was going to take the plant and move it down there, but when we went into it and Mr. Miller told me about the survey, that they were going to put the railroad there, I was advised not to move the plant there if the railroad was going to take the right of way. Actually I and Mr. Mendelson never did enter into any formal agreement with Mrs. Miller. All the business was done with Mr. Miller. As to whether we had any formal agreement...