State Highway Dept. v. Rutland

• Decision Date: 30 November 1965
• Docket Number: No. 41478,No. 3,41478,3
• Citation: 146 S.E.2d 544,112 Ga.App. 792
• Parties: STATE HIGHWAY DEPARTMENT v. L. G. RUTLAND
• Court: Georgia Court of Appeals

Page 544

146 S.E.2d 544

112 Ga.App. 792

STATE HIGHWAY DEPARTMENT v. L. G. RUTLAND.

No. 41478.

Court of Appeals of Georgia, Division No. 3.

Nov. 30, 1965.

Arthur K. Bolton, Atty. Gen., Richard L. Chambers, E. J. Summerour, Asst. Attys. Gen., Atlanta, S. B. McCall, Adel, J. Lundie Smith, Deputy Asst. Atty. Gen., Valdosta, Asa D. Kelley, Jr., Deputy Asst. Atty. Gen., Albany, for plaintiff in error.

No appearance, for defendant in error.

Syllabus Opinion by the Court

HALL, Judge.

The State Highway Department condemned 2.283 acres out of a 150-care tract of land. After a verdict of $10,850, the condemnor assigns error on the overruling of its motion for new trial. HELD:

1. The condemnor assigns error on the following charge of the court: 'I charge you that in estimating the value of land when taken for public uses, inquiry may be made as to all legitimate purposes to which the property could be appropriated or used. * * * In estimating its value the capabilities of the property and the use to which it is applied and to which it has been applied are to be considered, and not the mere condition it is in at the time and the use to which it is then applied by the owner. * * * All the facts as to the condition of the property and its surroundings, improvements and capabilities may be shown, and if shown, may be considered by the jury in estimating its value.' This charge was not authorized by the evidence, there being no evidence that the property had been put to any use other than agricultural, or had any capabilities for any other purpose. A charge in practically identicial language was assigned as error in Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387, AC 1914A, 880; (see footnote in State Hwy. Dept. v. Whitehurst, 109 Ga.App. 737, 739-740, 137 S.E.2d 371 which sets out the charge given and errors assigned in the Central Ga. Power Co. case). The Supreme Court held that the charges complained of 'were not warranted by the evidence, and therefore, under the repeated rulings of this court, were erroneous. It is argued that, if these charges were erroneous, they were harmless, as the jury only considered the value proved for one purpose, namely, the agricultural value. We have no means of knowing that the jury so limited themselves, and cannot say, as a matter of law, that the instructions complained of were harmless. They were probably confusing and misleading to the jury, and require a new trial.' Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 6, 76 S.E. 387, 389, supra.

In Georgia Power Co. v. Chapman, 46 Ga.App. 589, 590, 168 S.E. 134 this court held that a similar charge was not error by virtue of the fact that the court's charge limited its application to the facts which may be 'disclosed by the evidence.' In the present case one part of the charge was that the jury could consider capabilities of the property 'if shown.' The charge in the Central Ga. Power Co. case stated that the jury could consider evidence showing the property 'available for valuable uses if any such appears.' We think that the Georgia Power Co. v. Chapman case is in conflict with Central Ga. Power Co. v. Cornwell and must yield accordingly. Accord State Hwy. Dept. v. Weldon, 107 Ga.App. 98, 129 S.E.2d 396; State Hwy. Dept. v. Allen, 108 Ga.App. 388, 133 S.E.2d 64; State Hwy. Dept. v. Godwin, 109 Ga.App. 740, 137 S.E.2d 351; State Hwy. Dept. v. Futch, 109 Ga.App. 714, 137 S.E.2d 350; State Hwy. Dept. v. Whitehurst, 109 Ga.App. 737, 739, 137 S.E.2d 371, supra.

The trial court erred in overruling ground 4 of the motion for new trial.

2. Unless there is evidence of unusual circumstances to show that the criterion of market value will not afford just and adequate compensation, market value is the measure for determining the value of the land taken. Sutton v. State Hwy. Dept., 103 Ga.App. 29, 31, 118 S.E.2d 285; Georgia Power Co. v. Livingston, 103 Ga.App. 512, 514, 119 S.E.2d 802; State Hwy. Dept. v. Whitehurst, 106 Ga.App. 532, 127 S.E.2d 501; State Hwy. Dept. v. Thomas 106 Ga.App. 849, 853, 128 S.E.2d 520. It would seem that, when there is no such evidence, as in this case, the court should charge the jury that market value is the measure for determining just and adequate compensation to the condemnee. The trial court did not so charge in this case but charged 'that the State must pay the condemnee for the land its fair and reasonable value determined from the evidence.' However, since the case will be reversed on other grounds, it is not necessary for us to determine whether this charge, complained of in ground 5, was reversible error.

3. It has been stated in numerous court decisions that, when the sale price of similar land is offered as evidence of the value of land being condemned, it is within the sound discretion of the trial court to determine whether the other sale is comparable and admissible to throw light on the value of the land being condemned. West v. Fulton County, 95 Ga.App. 320, 97 S.E.2d 785; Fulton County v. Elliott, 109 Ga.App. 775, 777, 137 S.E.2d 477, reversed on other grounds Elliott v. Fulton County, 220 Ga. 377, 139 S.E.2d 312. But to admit evidence of the sales price of property in no way similar or comparable to the property being condemned is error requiring a new trial. Aycock v. Fulton County, 95 Ga.App. 541, 543, 98 S.E.2d 133. And to exclude evidence of the sale price of property with great similarity to the property being condemned is reversible error. Lewis v. State Hwy. Dept., 110 Ga.App. 845, 848, 140 S.E.2d 109. The trial court's discretion is a legal discretion and must be exercised in keeping with decisions of the appellate courts on the admissibility of evidence of sales of other lands--both the decisions holding a sale of land to be comparable to the land being condemned and requiring it to be admitted, and those holding the sale not comparable and requiring it to be excluded. 5 Lewis on Eminent Domain 445, § 21.31. If we do not follow these precedents we limit the hope of affording equal justice to all litigants.

In the present case the trial court excluded evidence that a 67-acre tract of land one-half mile from the condemnee's 150-acre tract, of which a part was being condemned, had been sold about one year before this condemnation for $300 an acre. Evidence was offered to show that both tracts were agricultural land and the 67-acre tract was sandier and was valued at $300 an acre, as compared to $350 for the condemnee's land. Considering judicial precedents on the question of comparability, this sale was comparable in time and in kind and location of the property to the condemned land. 1 Orgel on Valuation under Eminent Domain 591, § 139. The differences in the two tracts could be considered by the jury and weighed in determining the probative value of the evidence. Georgia Power Co. v. Walker, 101 Ga.App. 454, 457, 114 S.E.2d 159, 80 A.L.R.2d 1264.

The trial court erred in overruling grounds 6, 7, and 8 complaining of the exclusion of this evidence.

4. The court did not err in overruling grounds 9 and 11 complaining of the court's refusal to grant a motion for mistrial after allegedly prejudicial remarks by condemnee's counsel. The court instructed the jury to disregard the allegedly offensive statement, and condemnor's counsel made no further objection. 'If counsel was not satisfied with the instruction given by the court, he should have renewed his motion for a mistrial, and not having done so, the assignment of error is without merit.' Kendrick v. Kendrick, 218 Ga. 460, 462, 128 S.E.2d 496, 498; Atlantic C. L. R. Co. v. Smith, 107 Ga.App. 384, 386, 130 S.E.2d 355.

It is not necessary, because the case will be reversed on other grounds and the argument complained of as prejudicial in ground 10 should not occur on retrial, to decide whether this argument was cause for a mistrial. However, we call attention to the opinions in Augusta Sec. R. Co. v. Randall, 85 Ga. 297, 318, 11 S.E. 706, and Brown v. State, 110 Ga.App. 401, 138 S.E.2d 741 dealing with argument of prejudicial matters not in evidence. And as we do not know what the amount of the verdict will be after a retrial, it is not necessary to pass on grounds 12, 13 and 14 which contend that the evidence did not support the amount of the verdict.

Judgment reversed for the reasons stated in Divisions 1 and 3.

FELTON, C. J., BELL, P. J., FRANKUM, JORDAN, EBERHARDT, and DEEN, JJ., concur.

NICHOLS, P. J., and PANNELL, J., dissent.

PANNELL, Judge (dissenting).

I dissent from the ruling in Divisions 1 and 2 of the opinion for the reasons hereinafter shown.

1. It appears that the charge excepted to does not represent a distinctive connected instruction of the court, but is a combination of extracts from the charge. Accordingly, this ground is without merit and insufficient to call for any ruling. Cole v. Pepsi-Cola Bottling Co., 65 Ga.App. 204, 211(3), 15 S.E.2d 543; King v. Baker, 109 Ga.App. 235, 237(9), 136 S.E.2d 8. The charges in the cases above referred to in the majority opinion dealing with similar charges were separately dealt with in separate grounds of the motion for new trial.

However, even if this hurdle is overcome, it does not appear that the charge excepted to shows grounds for reversal. The original and leading case, which has been followed in a number of cases by this court, is Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 6, 76 S.E. 387 supra. The charges and the exceptions in that case are as follows: '4. Because the court erred in charging the jury as follows: 'The market value of property includes its value for any use to which it may be put. If by reason of its surroundings, or its natural advantages, or its artificial improvements, or its intrinsic character, it is peculiarly adapted to some particular use, and the circumstances which make up this adaptability have been shown, you may take such conditions into consideration in estimating its market value.'

'Said charge being...