State Highway Dept. v. Raines

• Decision Date: 18 May 1973
• Docket Number: No. 48165,No. 3,48165,3
• Citation: 199 S.E.2d 96,129 Ga.App. 123
• Parties: STATE HIGHWAY DEPARTMENT v. John D. RAINES
• Court: Georgia Court of Appeals

Page 96

199 S.E.2d 96

129 Ga.App. 123

STATE HIGHWAY DEPARTMENT v. John D. RAINES.

No. 48165.

Court of Appeals of Georgia, Division No. 3.

May 18, 1973.

Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Atlanta, Robert E. Sherrell, Deputy Asst. Atty. Gen., Fitzgerald, Hugh Wilson, Ashburn, for appellant.

Floyd H. Wardlow, Jr., Cheryle T. Bryan, Ashburn, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

The State Highway Department (now the Department of Transportation) brought condemnation proceedings against 12.899 acres of land owned by John D. Raines and currently used as farm or agricultural land, for the purpose of extending and enlarging a rest area on Interstate Highway 75 in Turner County. The declaration of taking method was used in acquiring the property, and the estimated value of the tract was paid into court. Condemnee appealed to a jury and a trial was had resulting in a verdict for considerably more than the estimated value. The condemnor appeals from the judgment on the verdict, enumerating as errors (1) the admission of testimony of a witness as to other uses to which the land might be devoted over objection that no foundation had been laid rendering the witness competent to so testify, or to form the basis for the opinion expressed by the witness, (2) admission of testimony of the condemnee relative to his sale some five years previously of a three-acre tract about a mile away from the tract being condemned, which was in the shape of an access road and used therefor, and (3) excluding the condemnee's ad valorem tax return for 1971, tendered for the purpose of impeachment. Held:

1. Enumerations of error 1 and 2 go to the same question and are treated together. Condemnee's witnesses, Guy Reinhardt and Carl Story, were offered for proving value. Reinhardt testified that he was a farmer, that he owned and operated farm lands and was generally familiar with land values in Turner County. He was asked whether he thought the land being condemned was worth $2,000 for farm and agricultural use and he answered in the negative, but he expressed an opinion that it was worth $2,000 per acre 'for development,' for 'building houses.' This testimony was objected to on the ground that (a) the witness had not testified to any facts which would render him a competent witness to testify concerning the economic feasibility of using the land for purposes other than those for which it was currently being used, or to any facts on which his opinion relative to such other uses might rest, nor had he given facts from which it could be deduced that there was a reasonable probability that there would be a demand for the land to be devoted to such other uses, and that his opinion was purely a speculative or conclusory one.

'Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity for forming a correct opinion.' Code § 38-1709. Neither of the witnesses whose testimony was objected to qualified as an expert on the value of lands in the community where the land lies, but 'any witness may swear to his opinion or belief, giving his reasons therefor . . .' Code § 38-1708. There is a legion of cases holding that the opinion of an ordinary witness must be founded upon facts testified to, and without giving them his opinion is inadmissible, and this is true even though the witness may state an absolute knowledge of his conclusion. Howell v. Howell, 59 Ga. 145(3). 'Though opinions are not generally evidence, yet, when the truth sought to be ascertained is matter of opinion, a witness, not an expert, may give his opinion, if he states the facts upon which it is based.' (Emphasis supplied.) Macon & Western R. Co. v. Johnson, 38 Ga. 409(5); Lankford v. Milhollin, 200 Ga. 512(3), 37 S.E.2d 197. '(A) monexpert witness can not give his opinion unless he also gives the fact or facts upon which he bases his opinion.' Alabama Great Southern R. Co. v. Brown, 140 Ga. 792, 797, 79 S.E. 1113, 1115. Where an opinion is not supported by facts testified to as the basis for it, it has no probative value and cannot support a verdict. Gordy Tire Co. v. Bulman, 98 Ga.App. 563, 564, 106 S.E.2d 332. These principles apply to testimony given in eminent domain or condemnation cases relative to the value of property just as they do in other cases. They are general principles or rules in the law of evidence.

A careful reading of the testimony of the witnesses Reinhardt and Story, the latter testifying that 'I think it could be used as commercial property,' and that it had a value of $1,700 per acre, but giving no supporting facts, to which the same objections were made, leads inevitably to the conclusion that the overruling of the objections was error. Neither of them gave facts upon which their opinion was given as to value for use other than as farm or agricultural land, or as to the feasibility for other uses, or facts showing a reasonable probability for a demand therefor. State Highway Dept. v. Hodges, 123 Ga.App. 806, 808, 182 S.E.2d 485, and cits.

2. The condemnee was allowed to testify, over objection, that some five years prior to the condemnation he had sold approximately three acres located a mile away and near a motel located on an interstate interchange, in the shape of and to be used as a private road for affording access to a public road other than the interstate, for $2,500 per acre.

The land condemned lies directly behind a rest area already developed alongside the interstate highway. It is separated by a chain link fence from both the interstate and the existing rest area, has no access of its own to the interstate or to any other road, and if developed for some other use would require the construction of an access road for a considerable distance. The terrain is uneven, rough and it lies over a soft limerock foundation, as shown by other witnesses. On the south side of the property is a borrow pit from which soil was taken for highway construction at some prior time.

Sales of other comparable property may be shown in these proceedings for the purpose of showing value. Where the land sold is comparable, taking into consideration its size, shape and location, and whether the sale is too remote in time to reflect fairly the land values in the area involved is within the sound discretion of the trial judge, but 'evidence as to the sale price of real estate in no particular similar or comparable to the property condemned is utterly irrelevant and should be excluded.' Aycock v. Fulton County, 95 Ga.App. 541, 543, 98 S.E.2d 133, 134. See also Rowe v. City Council of Augusta, 119 Ga.App. 571(3), 168 S.E.2d 209. If there is no key furnished by which the trial judge may exercise his discretion in determining the matter of comparability, the evidence should be rejected. Fulton County v. Cox, 99 Ga.App. 743, 745, 109 S.E.2d 849.

The only key appearing here is that both the tract sold and the tract condemned had been used as farm or agricultural land, and the condemnee conceded that the three-acre tract was better for that use than the tract under condemnation. Nothing in the evidence indicates whether land values five years previously were comparable to those obtaining at the time of the filing of this action. It does appear that the three-acre tract was located on an existing road and at an interstate interchange, while the tract being condemned is not. The judge abused his discretion in admitting this evidence. It comes very close to the situation in Southern Natural Gas Co. v. Waters, 124 Ga.App. 45(2), 183 S.E.2d 45. And see Adams v. City of Atlanta, 122...