State Highway Bd. Of Ga. v. Shierling

• Citation: 51 Ga.App. 935,181 S.E. 885
• Decision Date: 28 September 1935
• Docket Number: No. 24581.,24581.
• Parties: STATE HIGHWAY BOARD OF GEORGIA. v. SHIERLING.
• Court: United States Court of Appeals (Georgia)

51 Ga.App. 935

181 S.E. 885

STATE HIGHWAY BOARD OF GEORGIA.

v.SHIERLING.

No. 24581.

Court of Appeals of Georgia,

Division No. 2.

Sept. 28, 1935.

Rehearing Denied Oct. 4, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Stewart County; W. M. Harper, Judge.

Condemnation proceeding by the State Highway Board of Georgia against H. D. Shierling, administratrix. To review the judgment, after its motion for a new trial was overruled, condemnor brings error.

Affirmed.

M. J. Yeomans, Atty. Gen., B. S. Miller, Asst. Atty. Gen., S. M. Mathews, of Atlanta, A. D. Tucker, of Nashville, and G. Y. Harrell, of Lumpkin, for plaintiff in error.

R. S. Wimberly, of Lumpkin, and Hugh Howell, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, Judge.

1. Where property is taken, under power of eminent domain, for a public use, its market value for all purposes for which the property is available is the true measure of the owner's compensation. The value of the property to the condemnor for the specific purpose for which the property is taken is not the basis for measuring the amount of compensation payable to the owner. Harrison v. Young, 9 Ga. 359; Young v. Harrison, 17 Ga. 30; Young v. Harrison, 21 Ga. 584; Gate City Terminal Co. v. Thrower, 136 Ga. 456, 71 S. E. 903; Central Georgia Power Co. v. Mays, 137 Ga. 120, 72 S. E. 900; Central Georgia Power Co. v. Stone, 139 Ga. 416, 77 S. E. 565. The availability of property for the specific use for which it was taken and to which it is put by the condemnor is, however, an element to be considered in estimating the value to the owner for all purposes for which the property is available. Gate City Terminal Co. v. Thrower, 136 Ga. 456, 71 S. E. 903; Sargent v. Inhabitants of Merrimac, 196 Mass. 171, 81 N. E. 970, 11 L. R. A. (N. S.) 996, note, 124 Am. St. Rep. 528; Mississippi & R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206: Lewis on Eminent Domain; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51. Where property is condemned for the purpose of being used in the construction of a public road, its availability not only for the establishment of a right of way for a public road, but also, by reason of its width beyond the width required for the width of a roadway, for furnishing dirt for use in making a fill in the roadway, is an element for consideration in arriving at its true market value for all purposes, and therefore the amount of compensation payable to the owner. This is not in conflict with the rule announced in Selma, Rome & Dalton Railroad Co. v. Keith, 53 Ga. 178, that the issue is the amount of damage sustained by the landowner in the taking of his land, and not its value to the condemnor or the profit to him in condemnor's use of the land.

2. On the trial of an issue in condemnation proceedings, where a strip of land is sought to be condemned by the State Highway Board for the purpose of being appropriated to the building of a public road, it was not error as against that board to admit evidence tending to illustrate the availability of the land to the board for use in furnishing dirt to be used in making a fill in the roadway, where the evidence was not admitted for the purpose of affording the landowner an element for recovery of the value of the dirt so used, or recovery of a sum representing the value of the land to the board for the specific purpose of its use by the board in obtaining dirt therefrom to be used in the construction of the roadway in addition to the value of the land to the owner for all purposes, but was admitted for the purpose, as the court in the charge to the jury stated, "of illustrating the market value of the property taken, and to assist the jury in arriving at the true market value of the property, " which "is not its market value for any particular purpose, but its market value for any and all purposes, " and that "in arriving at this.general market value" the jury "are authorized to consider its availability and adaptability and value for any particular purpose or use for which the evidence shows it might be used."

3. On the trial of a condemnation proceeding the condemnor stands in the relation of plaintiff and the condemnee stands in the relation of defendant, and the burden of proof is upon the plaintiff, where the property has been taken or damaged, to establish by a preponderance of the evidence what amount of money constitutes just and adequate compensation. Streyer v. Georgia Southern & Florida Railroad Co., 90 Ga. 56, 15 S. E. 637. Therefore it is not error for the court to charge the jury that the plaintiff carries the burden to establish his contentions by a preponderance of the evidence. Where the trial is on appeal by the plaintiff from the award of compensation made by assessors, the charge is not subject to the objection that it places the burden of proof on the plaintiff to show by a preponderance of the evidence that the award made by the assessors was incorrect.

4. On the trial of condemnation proceedings, where a strip of land had been taken from land belonging to the condemnee for the purpose of being used in the construction of a public road, where it appeared that in the construction of the road a fill was made which left the remaining land of the defendant below the grade of the road, and where there was evidence that from the manner in which the road was constructed the defendant's land would be damaged by an overflow during freshets, and the soil washed away, the evidence authorized the inference that the defendant's land from which the strip had been taken for road purposes had suffered consequential damages in an amount to be estimated by the jury, and the court did not err in submitting this issue.

5. The verdict in the amount found for the landowner, the condemnee, was authorized, and no error appears. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

SUTTON, J., concurs.

JENKINS, Presiding Judge (dissenting).

Under the disputed testimony, the verdict was not without evidence to support it. It is upon the very important question as to what constitutes the correct measure of damages that I feel compelled to differ with what is said by my colleagues. There is little, if any, difference between them and myself as to the correctness of the definition set forth in the majority opinion, as follows: "Where property is taken, under power of eminent domain, for a public use, its market value for all purposes for which the property is available is the true measure of the owner's compensation. The value of the property to the condemnor for the specific purpose for which the property is taken is not the basis for measuring the amount of compensation payable to the owner." The difference between us arises as to what constitutes the "market value for all purposes." It appears that the State Highway Board in constructing a road across certain bottomlands acquired partly by purchase and partly by condemnation a right of way 150 feet wide--wider than necessary for the roadbed, in order that it might construct a "berm ditch" 25 feet wide and 4 or 5 feet deep, parallel to the highway, for the purpose of draining the land and in order to obtain dirt for filling in and elevating the roadbed. The contention of the defendant in error is that the Highway Board "was obtaining this for the object and purpose of obtaining dirt with which to construct the large fill that had...