State Highway Dept. v. Parker
| Decision Date | 06 September 1966 |
| Docket Number | No. 3,No. 42189,42189,3 |
| Citation | 150 S.E.2d 875,114 Ga.App. 270 |
| Parties | STATE HIGHWAY DEPARTMENT v. Homer M. PARKER et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) At the time this case was tried there was no error in admitting, over objection, evidence elicited on the cross examination of an expert witness concerning the price at which a lot of similar type land located very near to that of condemnee had been sold, though the witness stated that he did not regard the two properties as comparable since the other lot was located right at the interchange and in great demand as a site for filling station use, whereas the lot of condemnee was far enough removed to make it undesirable for that purpose. The jury could apply the information in evaluating the expert's opinion as to the value of condemnee's land.
(b) Under the law as it existed when the case was tried there would be no merit in condemnor's position that evidence as to the price of comparable lands sold in the vicinity following the coming of the improvement, being inflated by the improvement, should for that reason be excluded.
(c) But on another trial a different result will be required under Ga.L.1966, p. 320.
2. (a) An owner, though non-expert, may testify as to his opinion of the value of his land after stating the facts upon which the opinion is based.
(b) Neither an offer to buy made to the owner nor his unwillingness to sell at less than a stated price is competent evidence of value. If an opinion rests wholly upon an unaccepted offer to buy, it is without foundation and should be excluded.
3. (a) While an expert may state his opinion of value without giving his reasons therefor, it is error to refuse to permit him to do so.
(b) Judicial notice is taken of the law requiring affixation of revenue stamps to a deed based upon the amount of the consideration. It is presumed that this law has been complied with in the affixation of stamps, and the consideration as indicated by the amount of the stamps affixed to a deed conveying comparable lands is a legitimate consideration by the witness in the formulating of his opinion as to value.
(c) Though the exclusion of the evidence was error, when it appears that at a later time in the examination of the same witness the same evidence was elicited, the same objection made and that the objection was then overruled and the evidence admitted, the previous error became harmless.
The State Highway Department filed condemnation proceedings under Code Ann. § 36-1303 (Ga.L.1961, p. 517) in Clayton County against Homer M. Parker and others as the owners of certain land which was sought as a right of way for the construction of a highway. Being dissatisfied with the condemnor's estimated value, paid in upon the entry of a declaration of taking, the condemnee appealed to a jury. After trial the condemnor, being dissatisfied with the verdict, appealed from the judgment based thereon.
Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Atlanta, Howard P. Wallace, Deputy Asst. Atty. Gen., John R. McCannon, Jonesboro, for plaintiff in error.
No appearance, for defendant in error.
1. In the first enumeration of error the condemnor urges error in the admission, over objection, of testimony of one of its witnesses while on cross examination concerning the sale price of a lot, removed from that of the condemnee by only one other lot, sold by its owner to an oil company for use in the operation of a retail service station. It appeared that the lot was of substantially the same soil, topography, and the like, located very near that of the condemnee, and that neither had improvements thereon. The witness admitted familiarity with the lot and with the transaction by which the oil company had acquired it. The objections to the testimony were (a) that the witness himself stated that since the lot sold to the oil company was located immediately at an interchange and was suitable for filling station purposes it was not, in his judgment, comparable to the land of the condemnee; that oil companies pay fantastic prices for sites properly located at the interchange which could be used in the operation of filling stations, (b) that it appeared that the sale to the oil company occurred six months after the date of taking.
As the law then stood, there would seem to have been no error in the admission of this evidence. The expert witness was being cross examined concerning the basis of his opinion as to value, and the condemnee was entitled to have the witness state whether he had considered the sale of nearby property in arriving at his valuation, and whether he deemed the nearby property comparable, and why. While it does appear that the lot sold to the oil company and that which was the subject matter of the condemnation proceedings were not comparable as filling station sites, it does appear that in other respects they were. Explanation of the lack of comparability as filling station sites was made in connection with the statement of the price paid, and the jury could take that into account in evaluating the expert's opinion as to value.
There would be no merit in the objection that the sale to the oil company was made after the date of taking and at a time when values had been enhanced by reason of the coming of the improvement under Hard v. Housing Authority of City of Atlanta, 219 Ga. 74, 132 S.E.2d 25.
But attention is directed to the Act of 1966 (Ga.L.1966, p. 320) Code § 36-1117 by providing that 'In fixing and determining the amount of just and adequate compensation to be paid for property actually taken, consideration shall not be given to any increase or decrease in the value of the property actually taken resulting from the improvements, or the anticipation thereof, in connection with which the right of eminent domain is being exercised.' This legislative provision appears to supersede the ruling in Hard v. Housing Authority of City of Atlanta, 219 Ga. 74, 132 S.E.2d 25, supra, and any cases following it. Thus, if it appears that the value of the property which is the subject matter of a sale, concerning which evidence is elicited as showing the value of property taken, was increased or decreased as a result of the improvement or the anticipation thereof, the evidence would come within the proscription of this Act. This is a matter to which the court should direct its attention on another trial. City of Valdosta v. Singleton, 197 Ga. 194, 208, 28 S.E.2d 759; Fulton County v. Spratlin, 210 Ga. 447(2), 80 S.E.2d 780.
2. The second and third enumerations of error are as to the admission, over proper objection, of testimony of the condemnee concerning the amount of an offer which he received for the land some few months prior to the taking. He testified that he was of the opinion that the land was worth $12,000 per acre, and when asked what he based that opinion on he answered, 'I based it on an offer that had been made.' There was objection that since he had not qualified as an expert and the unaccepted offer was purely hearsay in nature, his opinion based thereon would not be admissible. The court overruled the objection and permitted the witness further to testify that the offer had been made by Scott Hudgens Company in April, 1962 for $10,000 per acre. On cross examination he testified that he had received no other offers, save that made by the condemnor.
The rulings of the court were specifically made referring to the witness as an expert, but nothing in the record discloses any qualification of the witness as an expert. He owned an undivided interest in the land. An owner, ...
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