State Highway Dept. v. Thomas, 39681
| Decision Date | 26 October 1962 |
| Docket Number | No. 1,No. 39681,39681,1 |
| Citation | 128 S.E.2d 520,106 Ga.App. 849 |
| Parties | STATE HIGHWAY DEPARTMENT v. Russell THOMAS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In a condemnation case the trial judge may exercise his discretion to determine whether or not the evidence shows a reasonable probability that land can be used for a subdivision and, based on such determination, may admit or exclude evidence of value of the land for subdivision use, and his discretion in admitting such evidence for consideration of the jury, or excluding it, will not be controlled unless it is abused.
2, 3, 4. Assignments of error on the admission of evidence are without merit.
5. The measure of damages in a condemnation case is the fair market value of the property taken when there is evidence of the fair market value of the land for farm purposes and for subdivision use, and no evidence of any unique value to the condemnee over and above market value or of unusual circumstances showing that market value will not afford just and adequate compensation.
Upon the trial of this case in which the State Highway Department (hereinafter called condemnor) had condemned 18.892 acres of land owned by the defendant in error (hereinafter called condemnee), the jury awarded $21,000 to the condemnee. The condemnor assigns error on the trial court's overruling of its amended motion for new trial.
Eugene Cook, Atty. Gen.; Carter Goode and Richard L. Chambers, Asst. Atty. Gens., Atlanta, Hollis Fort, Jr., Americus, for plaintiff in error.
R. L. LeSueur, R. L. LeSueur, Jr., Americus, for defendant in error.
1. Special grounds, 1, 4, 5, 6 and 9 of the motion for new trial complain of the admission of, or failure to exclude, testimony of the condemnee and two other witnesses as to the value of condemnee's property for subdivision purposes. The condemnor objected to the evidence on the ground that the condemnee had not shown that a subdivision was in the process of being developed when the property was condemned, and hence it was inadmissible to prove the fair market value to the land or the basis for just and adequate compensation. This court has held that at least a reasonable probability must be shown that condemned property could be used for subdivision purposes to authorize a jury to consider subdivision use in determining the value of land; the mere possibility of such use is not sufficient to authorize the jury to consider subdivision use in determining the value. Georgia Power Co. v. Livingston, 103 Ga.App. 512, 513, 119 S.E.2d 802. 'Under proper evidence in determining just and adequate compensation for property taken by eminent domain, the jury may consider the value of the property for uses other than that for which it was being used at the time of the condemnation.' State Highway Department v. Robinson, 103 Ga.App. 12, 16, 118 S.E.2d 289. The trial judge may exercise his discretion to determine whether there is ample evidence to authorize the jury to consider subdivision use in finding the value of land and, based on such determination, may admit or exclude evidence of value of the land for subdivision use. Tift v. State Highway Department, 99 Ga.App. 387, 392, 108 S.E.2d 724; State Highway Department v. Wells, 102 Ga.App. 152, 153, 115 S.E.2d 585. Hence, when the trial judge determines from the evidence that there is a reasonable probability that land can be used for a subdivision and accordingly admits evidence of its value for subdivision use, his discretion will not be controlled unless it is abused. Tift v. State Highway Department, supra; State Highway Department v. Wells, supra. In the present case the condemnee testified that he had in mind subdividing the property 10 or 12 years ago, shortly after he purchased it. There was testimony of witnesses knowledgeable in real estate that the property was about one and one-half miles from the center of Americus and that the development of the town was going in the direction of the property; that it was adaptable for a subdivision and best suited for residential subdivision; that certain utilities were available; that the adjoining property had been subdivided with streets laid out to the line of the condemned property which could continue through the property. The president of a Federal Savings and Loan Association testified that lots as shown on a subdivision survey would be acceptable for loans. The trial judge did not abuse his discretion in determining that this evidence established a reasonable probability that the land could be used for a subdivision and that the jury were authorized to consider subdivision use in arriving at its value.
2. Grounds 2, 3, and 7 complain of the admission of and refusal to exclude testimony of witnesses introduced to show the value of 'metal Quanset type' buildings, of certain dimensions and materials, which the condemnor had removed from condemnee's property and sold. Two witnesses testified that they had seen photographs taken of these buildings before condemnation. One of these witnesses testified that he had seen and measured these buildings both since the condemnation. The other witness testified that he had seen the buildings both before and after the condemnation. The witnesses testified as to their experience with buildings of the same type and their familiarity with the prices thereof, and testified as to the cost and market value of comparable buildings. The condemnor objected to the evidence at the trial on the ground that the witnesses had not been in the buildings.
The condemnor relies on Georgia Power Co. v. Livingston, 103 Ga.App. 512, 119 S.E.2d 802, where the court held that a witness was not competent to give his opinion of the value of a house in which he had never been. That case is not controlling. In the present case the witnesses testified as stated above as to their observations of the buildings before and after the condemnation, and testified further, based on their experience with and knowledge of the buildings in question and like buildings, as to the value of structures of this type. Nor is the case of State Highway Department v. Murray, 102 Ga.App. 210, 115 S.E.2d 711, controlling. There it was held that where there was no other evidence of the value of houses, replacement costs, standing alone, should not be admitted to establish the damages in a condemnation case. The evidence offered in the present case to prove the value of condemnee's buildings was the value of like property, which is admissible if the trial judge determines the other property is comparable. West v. Fulton County, 95 Ga.App. 320, 321, 97 S.E.2d 785; Housing...
To continue reading
Request your trial
-
Dendy v. Metropolitan Atlanta Rapid Transit Authority, 63591
...Housing Authority, City of Atlanta v. Goolsby, et al., 136 Ga.App. 156, 159, 220 S.E.2d 466. Compare State Highway Department v. Thomas, et al., 106 Ga.App. 849, 851(2), 128 S.E.2d 520; Department of Transportation v. Dent, et al., 142 Ga.App. 94(2), 235 S.E.2d 610; Department of Transporta......
-
Macon-Bibb County Water & Sewerage Authority v. Reynolds
...other criteria than fair market value may be considered in arriving at just and adequate compensation." State Highway Dept. v. Thomas, 106 Ga.App. 849, 853, 128 S.E.2d 520. In Thomas, supra, the issue was whether evidence was admissible to show the condemned land was to become a subdivision......
-
DAVIS CO., INC. v. Department of Transp.
...and best use. See generally Dept. of Transp. v. Metts, 208 Ga.App. 401, 402-403(1), 430 S.E.2d 622 (1993); State Hwy. Dept. v. Thomas, 106 Ga.App. 849(1), 128 S.E.2d 520 (1962). But, application of that principle to business losses would destroy the intent behind the rule that business loss......
-
Fulton County v. Funk
...was taken will not represent just and adequate compensation for their lost interests in the real property. State Hwy. Dept. v. Thomas, 106 Ga.App. 849, 853, 128 S.E.2d 520 (1962). White did not involve a charge on the "undivided fee rule." The sole question presented for resolution therein ......