State Highway Dept. v. Kaylor, 40679

• Decision Date: 06 May 1964
• Docket Number: No. 2,No. 40679,40679,2
• Citation: 137 S.E.2d 664,110 Ga.App. 46
• Parties: STATE HIGHWAY DEPARTMENT v. Julian KAYLOR et al
• Court: Georgia Court of Appeals

Page 664

137 S.E.2d 664

110 Ga.App. 46

STATE HIGHWAY DEPARTMENT v. Julian KAYLOR et al.

No. 40679.

Court of Appeals of Georgia, Division No. 2.

May 6, 1964.

Rehearing Denied July 6, 1964.

Syllabus by the Court

Consequential damages to property not taken in a condemnation proceeding resulting from the proper construction and maintenance of the object for which the property is taken must be recovered, if recovered at all, in the condemnation proceeding.

The State Highway Department filed the present condemnation proceeding to condemn an easement across lands of the condemnees for the purpose of constructing a concrete storm-drain culvert. The case was originally tried before a special master and on appeal by a jury in the superior court. After the jury returned a verdict the condemnor filed a motion for new trial on the usual general grounds and three special grounds wherein error is assigned on the admission in evidence of testimony by one of the condemnees as to the manner in which dynamite was used in constructing the storm-drain culvert. The objection made to such evidence in each special ground of the amended motion for new trial was as follows: 'Now, if your Honor, please, this is a condemnation and the witness has testified [to] facts which, if they are true, would be the negligence of the contractor and for which the contractor would be liable and, we move at this time, and we object to that testimony and move to rule it out. It is not relevant or material to any issues here where the sole issue is market value of this easement and any consequential damages which arise from the proper construction of the easement. Now, that was determined and Mr. Wiggins has a decision here somewhere. That was decided in the McArthur case and has since been reaffirmed in other cases. The State Highway Department is not liable for the torts of the contractor and if the facts to which he is testifying now, to, then his cause of action is against the contractor and would not be relevant or material in this condemnation proceeding. We move to rule the testimony out.' The trial court overruled condemnor's motion for new trial and error is now assigned on such adverse judgment.

Eugene Cook, Atty. Gen., Richard L. Chambers, E. J. Summerour, Asst. Attys. Gen., Atlanta, William J. Wiggins, Carrollton, for plaintiff in error.

Earl Staples, Carrollton, for defendants in error.

NICHOLS, Presiding Judge.

In the case of McArthur v. State Highway Department, 85 Ga.App. 500, 69 S.E.2d 781, it was held: 'There are only two elements of damages to be considered in a condemnation proceeding: first, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner's property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned, including its proper maintenance and operation, and the measure of these consequential damages is the diminution in the market value of the remainder of the property proximately arising from these causes. Consequential damages to the remainder...