State Highway Dept. v. Howard
| Decision Date | 05 March 1969 |
| Docket Number | No. 44039,No. 1,44039,1 |
| Citation | 167 S.E.2d 177,119 Ga.App. 298 |
| Parties | STATE HIGHWAY DEPARTMENT v. T. C. HOWARD et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. It is error to dismiss a motion for new trial by a condemnor who seeks to obtain land for the construction of a road or a street because of failure of the condemnor to pay into the registry of the court or to the condemnee the amount representing the increase of the compensation to be paid, as fixed by the verdict of a jury, over the amount which had been paid in on a declaration of taking. When land is taken for road or street purposes the condemnor is not bound to pay the additional compensation until a judgment fixing it has become final. It is not a condition precedent that the increased compensation be paid before moving for a new trial or before appealing from the judgment on the verdict or from the denial of a new trial.
2. Where the condemnor produced an aerial photograph of the lands being condemned carrying a scale thereon for the calculation of distances or dimensions, and used it in examining a witness on direct examination, it was not error to allow the witness on cross examination to apply the scale and testify as to the distance from one point on the map to another.
3. It was error to permit a witness for the condemnee to testify concerning the distance of a livestock place from a cafe in another locality for the purpose of showing the feasibility of using condemnee's land (which was near an abattoir) for residential purposes, similarity of the conditions not have been made to appear.
4. Where evidence of sales of other property in the vicinity of that owned by the condemnee, made some three years after the taking, was offered as tending to show the value of condemnee's land, it was within the sound discretion of the trial judge as to whether comparability of the lands sufficiently appeared and whether economic factors affecting the price of land had substantially changed, in determining whether the evidence should be admitted. Absent a showing of abuse in the exercise of his discretion it will not be disturbed.
5. It was error to permit the condemnee to testify that he had planned to use the land for his retirement in old age, and that he had in mind developing it as a trailer park or as a subdivision. This speculative evidence utterly fails to show the suitability of the land for uses other than those to which the land was devoted at the time of taking.
6. It was error to exclude testimony of an expert witness as to the matters which constitute the basis for his opinion. The evidence may or may not be admissible as direct evidence of value, depending upon its nature, but it is generally, admissible in explanation of the expert's opinion of value.
7, 8. Although an adjoining owner may have cultivated the condemnee's land as a tenant, as lessee or in a joint venture with the condemnee, if it appears that by reason of the taking the condemnee can not get from his land to any public road save by going over the lands of an adjoining owner, the condemnee's land is land-locked. The adjoining owner is under no legal obligation to afford an easement over his land to the condemnee other than in a manner prescribed by law. Consequently, the requested charges indicating that use of the lands by the condemnee and his brother, the adjoining owner, in a joint venture of farming would take the condemnee's land out of the category of being land-locked were not adjusted to the evidence and were properly refused.
9. There was no error in the charge of the court outlining the method by which the condemnee might obtain a right of way easement from his lands over those of the adjoining landowner under the provisions of Code Title 83. While the charge does assume as a fact that condemnee's remaining land was land-locked by the taking of condemnor, this was the uncontradicted evidence on the matter.
The State Highway Department brought condemnation proceedings to acquire a portion of the lands of T. Coke Howard for road purposes, filing its declaration of taking and in connection therewith paying into the registry of the court the value of the land taken and the damages to the land not taken as reflected by appraisals which had been secured. Upon an appeal of the matter to a jury in the superior court a verdict was returned increasing the amount of compensation to be paid. The State Highway Department filed a motion for new trial, which was duly amended, and condemnee moved to dismiss it because of the failure of the condemnor to pay to him or into the registry of the court the amount representing the increase over that which had been paid in on the filing of the declaration of taking. The trial court sustained the motion to dismiss, and condemnor appeals from the judgment on the verdict, enumerating as error the dismissal of its motion and certain other matters included as grounds in the motion which will appear from the opinion.
Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Robert E. Sherell, Asst. Attys. Chambers, Robert E. Sherrell, Asst. Attys. for appellant.
Beverly B. Hayes, Dublin, for appellees.
1. While it was held in City of Gainesville v. Loggins, 224 Ga. 114, 160 S.E.2d 374 that it was a prerequisite to an appeal from a judgment on the verdict of a jury in a condemnation proceeding by the city to pay to the condemnee or into the registry of the court the difference between the award of the special master (the proceeding being under Code Ch. 36-6A) and the jury verdict, we do not regard that ruling as applicable to the situation here.
Art. I, Sec. III, Par. I of the Constitution (Code Ann. § 2-301) was amended in 1960, the amendment having been ratified by the voters in the election of November 8, 1960, so that it now provides, inter alia, that 'when private property is taken or damaged for public road and street purposes by the State and the counties and the municipalities of the State, just and adequate compensation therefor need not be paid until the same has been finally fixed and determined as provided by law.' (Emphasis supplied).
This provision was not made applicable to the condemnation of lands for other public purposes, such as urban renewal, which was the purpose of the condemnation proceeding in City of Gainesville v. Loggins, supra. It applies only when the lands are being condemned for road and street purposes. There is no finality of the fixing and determining of the compensation in this sense until the judgment itself becomes final by a failure to appeal within the time provided by law, or upon a final disposition of an appeal from the judgment. In other situations, such as that in City of Gainesville v. Loggins, the provision is that the property shall not be taken 'without just and adequate compensation being first paid.' This applied to the acquisition of land for road and street purposes when Woodside v. City of Atlanta, 214 Ga. 75, 103 S.E.2d 108 was decided, and it was to escape the requirement of paying before the ultimate determination of just and adequate compensation for acquisition in highway construction that the constitutional amendment was proposed by the General Assembly and ratified by the people in 1960. State Highway Dept. v. Smith, 219 Ga. 800, 805(1b), 136 S.E.2d 334.
The language of the constitutional amendment is plain and unambiguous. It was error to dismiss the motion for new trial.
2. For evidentiary purposes the condemnor produced an aerial map or photograph of the lands involved in this proceeding, bearing thereon a scale of measurement for the calculation of distances...
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