State Highway Dept. v. Noble
| Decision Date | 28 June 1966 |
| Docket Number | Nos. 42108,No. 3,42117,s. 42108,3 |
| Parties | STATE HIGHWAY DEPARTMENT v. W. W. NOBLE et al. W. W. NOBLE et al. v. STATE HIGHWAY DEPARTMENT |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The discretion of the trial judge in determining whether sales made in the open market are comparabel and thus whether the evidence as to them should by admitted in the proof of value of lands being condemned is a legal one. If the lands are of a similar kind, located within a reasonable proximity and sold at a time, before or after the date of taking, when general land values were not greatly different from those at the time of taking, the evidence should be admitted.
(a). If it appears that a substantial change in the economy and of general land values took place between the time of the sale and the date of the taking, or vice versa, the evidence should nevertheless be admitted if the change was against the party offering the testimony.
2. That lands being condemned have thereon a pond resulting from the damming of a branch and from which the condemnee caught fish and sold them through a market which he operated, and that he raised cattle on the lands, watering them from the pond, and butchered and sold these through his market, does not show a special or unique value attaching to the land above market value.
(a). The estimated gross annual income received from the operation of the condemnee's market (not located on the premises being condemned) is not evidence of a special or unique value over and above market value of the land being condemned.
3. Unless there is evidence in the record justifying a finding of a special or unique value over and above the general market value of the land, it is error to charge thereon.
4. Under a grant of an easement for the flooding of grantor's lands to create a pond for irrigation purposes by the damming of a stream, unless also granting general water rights or specifically granting fishing rights, the grantee obtains no fishing rights over the grantor's lands.
W. W. Noble owned approximately 30 acres of land, of which the State Highway Department condemned for the purposes of a limited access highway 6.389 acres together with a drainage easement of a quarter of an acre. A pond of water estimated by some witnesses to have been 7 to 10 acres, and by others to have been approximately 30 acres in size, located partly upon the land of condemnee and partly upon the lands of another, was drained by the construction of the highway. It had been formed by the damming of a branch, and condemnee held from the adjoining owner the grant of an easement for the backing of water upon her lands. The easement reserved to grantor, her heirs and personal representatives, the rights of fishing in the pond and of using its waters for watering livestock, but provided that the grantee, Mr. Noble, should have the 'sole use of said waters for irrigation purposes.' Approximately 2 1/2 acres on the west side of the right of way was landlocked, leaving some 21 acres on the east side. There had been about 4 acres of cultivatible land in the portion taken for the right of way. The remainder of the farm was in pasture, pond or swampy areas.
Mr. Noble operated a retail meat and fish market. He testified that a portion of his supply of fish was obtained from the pond and that he raised and butchered cattle on the farm for sale through the market. An employee at the market testified that about three or four dollars worth of fist were obtained and sold on Mondays, Fridays and Saturdays. He gave no figures concerning the amount of beef obtained from the farm and sold through the market. Mr. Hoble testified that he had a gross annual income from the market of about $2,500. There was testimony that Mr. Noble had several boats at the pond and that these were frequently rented for fifty cents a day to people who wished to fist. Because of these facts Mr. Noble contended that the pond had a special, unique value, over and above the market value, to him.
After verdict for the condemnee for $20,158 both the condemnor and condemnee moved for a new trial. Both motions, after amendment, were overruled. The condemnor appeals and the condemnee cross-appeals.
Arthur K. Bolton, Atty. Gen., Richard L. Chambers, E. J. Summerour, Asst. Attys. Gen., atlanta, Asa D. Kelley, Jr., Deputy Asst. Atty. Gen., Albany, for appellant.
S. B. McCall, Hugh D. Wright, Edward Parrish, Virgil Griffis, Adel, for appellees.
1. Enumerated as error by the condemnor on its appeal are refusals of the court to admit as evidence of comparable sales a sale of (a) a five-acre tract adjoining the lands of the condemnee and having the same type of soil and soil conditions as did the land of the condemnee, made twenty-three months after the date of taking, (b) a 32.7 acre tract immediately adjoining the land of the condemnee having similar soil and conditions, made some six years after the date of taking, and (c) a tract located approximately six miles from the land of the condemnee, but having similar soil and soil conditions, including a similar pond, made within a year of the date of taking. Each of the tracts had some pasture land, some cultivatable land and some swampy area. The evidence was objected to and excluded because the sales occurred after the date of taking. It was contended that these could not, therefore, amount to evidence of the value of comparable lands as of the time of taking, and that the sole issue was as to the value of the condemnee's land on the date of taking. The condemnee and his witnesses testified that land values in the county and in the general area of the improvement being made by the condemnor had been on a steady increase since the time of taking. Consequently, if this evidence tended to show a higher value than the market value on the date of taking, it was against the condemnor who offered the evidence and in favor of the condemnee.
While it is within the sound discretion of the trial judge to determine whether the sale is comparable and throws light on the value of the land being condemned, the discretion is a legal one. If it appears that the property which was the subject matter of the sale was in no way comparable to that being condemned, the evidence should not be admitted. But if it does have similarity, exclusion of the evidence is error. The sale should be within a reasonable proximity of time to the date of taking, either before or after. It is generally difficult to find evidence of sale made at the time of taking-frequently impossible. If it should appear that drastic changes in the economy have occurred and land values have changed so that the price paid for similar land in open market could not fairly be said to reflect the value of the land being condemned, it should be excluded. 'It is to be considered with reference to throwing light on the issue, and not as a mere method of raising a legal puzzle.' Flemister v. Central Ga. Power Co., 140 Ga. 511, 515(6), 79 S.E. 148, 151. Cf. Freedman v. Housing Authority of the City of Atlanta, ...
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