State Highway Dept. v. Davis

• Decision Date: 19 April 1973
• Docket Number: No. 47972,No. 2,47972,2
• Citation: 199 S.E.2d 275,129 Ga.App. 142
• Parties: STATE HIGHWAY DEPARTMENT v. Ada F. DAVIS et al
• Court: Georgia Court of Appeals

Page 275

199 S.E.2d 275

129 Ga.App. 142

STATE HIGHWAY DEPARTMENT v. Ada F. DAVIS et al.

No. 47972.

Court of Appeals of Georgia, Division No. 2.

April 19, 1973.

Rehearing Denied May 29, 1973.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, G. Thomas Davis, Asst. Attys. Gen., Atlanta, William J. Neville, Statesboro, for appellant.

Anderson & Sanders, Cohen Anderson, Faye Sanders, Statesboro, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal arises out of the Highway Department's condemning 55.050 acres of land, a drainage easement, and a detour easement from a tract of approximately 303 acres to acquire a right of way in Bulloch County for Interstate Highway 16. The condemned area included a four-acre body of water referred to by condemnor's counsel as a 'pond' and by the condemnees' advocate as a 'lake.' (T. 19). The placement of the proposed highway would divide the property so as to leave three separated plots. One of these remainders containing 89 acres was landlocked. Another contained the dwelling which after highway construction would be located within 215 feet from a proposed interchange and 700 feet from the highway itself, a factor which condemnees contended would diminish the dwelling's market value by reason of the Interstate's noise and heavy traffic. This latter was disputed by the condemnor.

The Highway Department condemned by the Declaration of Taking method as authorized by Ga.L.1961, p. 517 et seq. as amended. Being dissatisfied with the monetary award made therein, the property owners filed their appeal to the superior court. After a verdict for the condemnees, the Highway Department's amended motion for new trial was denied. This appeal followed with three enumerations of error, two of which dealt with charges given by the trial judge and the third with his refusal to give a requested charge as to the landlocked parcel.

1. We deal first with the attack made upon that portion of the charge dealing with a possible diminution in value of the dwelling because of its proximity to the interchange and the new interstate highway. Appellant contends the language used by the court to have been argumentative stating as a fact a matter that was controverted, arguing that the court expressed an opinion to the effect that there would be increased hazards to the surrounding property and that there would be heavy traffic and resulting noise. The portion objected to was the following: 'I charge you that in determining whether or not the market value of the property of the condemnees lying adjacent to the lands actually taken, has been diminished, you may consider whether or not increased hazards to the surrounding property due to the fact that people may be reluctant to live in an area with heavy traffic and the resulting noise, and therefore consequently pay less for property.'

"On review the charge must be considered as a whole and each part in connection with every other part of the charge. (Cits.)' Zayre of Georgia, Inc., v. Ray 117 Ga.App. 396(5), 160 S.E.2d 648, 650. 'A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall.' Brown v. Matthews, 79 Ga. 1, 4 S.E. 13.' Bailey v. Todd, 126 Ga.App. 731(5), 191 S.E.2d 547. More succinctly stated, the rule is that in consideration of allegedly erroneous charges this court must look to the charge in its entirety. Dixie-Ohio Express, Inc. v. Brackett, 106 Ga.App. 862, 866, 128 S.E.2d 642. If the charge as a whole is not misleading, there is no error. Aycock v. State, 188 Ga. 550, 4 S.E.2d 221; McDonald v. Wimpy, 204 Ga. 617, 50 S.E.2d 347; Smith v. Rich's, Inc., 126 Ga.App. 239, 190 S.E.2d 493.

Our review of the charge as a whole shows there was no indication of a preference for either side and there was no inference that this was a proven fact.

The entire charge on this subject was approved in State Highway Dept. v. Hollywood &c. Church, 112 Ga.App. 857, 860, 146 S.E.2d 570, 572, where our court said: '(T)he court charged the jury that 'mere inconvenience is not, in and of itself, an element of damages to be considered in condemnation cases, but inconveniences such as noise, smoke, dust and the like may be considered if shown by the evidence to adversely affect the value of the condemnee's remaining property.' The charge was abstractly correct. Austin v. Augusta Terminal R. Co., 108 Ga. 671, 34 S.E. 852, 47 L.R.A. 755 . . . In order for these factors to be considered as adversely affecting the market value of the remaining property, it must be shown, among other things, that such factors are a continuous and permanent incident of the improvement, and in the absence of such a showing this charge to the jury was error.' In the instant case evidence was introduced which indicated that the highway noise would be a permanent or continuous incident of the improvement and therefore was to be considered. State Highway Dept. v. Augusta District &c., 115 Ga.App. 162(1a), 154 S.E.2d 29.

Although condemnor's witnesses did not consider noise per se as an element in their estimation of consequential damages, this does not negate the testimony of condemnees' witnesses. 'Where conflicts in testimony are irreconcilable, the duty of the jury, in a consideration of the evidence as a whole, is to find the truth of the testimony in conflict, and to that end they may accept or reject any or all the testimony of any witness or witnesses, as to whose testimony the conflict arises.' Powell v. Blackstock, 64 Ga.App. 442(5), 13 S.E.2d 503. There was sufficient evidence concerning noise and its adverse effect on the market value of the dwelling to support the judge's charge. This enumeration is therefore without merit.

2. In addition, the Highway Department contends the court erred in charging the jury that 'in estimating the value of land when taken for public uses, the jury is not restricted to its agricultural or productive qualities but inquiry may be made as to all other legitimate purposes to which the property could be appropriated or used' (T. 208), arguing that no evidence was presented as to the land taken which would support such a charge. This contention as to lack of evidence is rebutted by the direct statement made by condemnees' witness that 'I think better use of the whole land would be for residential' (T. 118), as well as by other portions of the evidence.

Furthermore, 'A new trial will not be required where a portion of a charge even though inapt and not authorized by the pleadings when considered in connection with the verdict shows that no injury was done to appellant (Highway Department). (cits).' Bailey v. Todd, 126 Ga.App. 731(9), 191 S.E.2d 547. Without consequential damages the fair market value of the take as testified to by condemnees' witnesses ranged from $26,020 to $29,300. These witnesses testified there were also consequential damages which they set at $29,082 and $26,250. The Highway Department's witnesses set the fair market value of the take at $26,700 and $24,100 respectively with an express contention that the consequential benefits exceeded the...