State Highway Dept. v. Clark, 45884
| Decision Date | 08 April 1971 |
| Docket Number | No. 45884,No. 3,45884,3 |
| Citation | 123 Ga.App. 627,181 S.E.2d 881 |
| Parties | STATE HIGHWAY DEPARTMENT v. A. B. CLARK, Jr., et al |
| Court | Georgia Court of Appeals |
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Atlanta, Robert E. Sherrell, Deputy Asst. Atty. Gen., Fitzgerald, Clayton R. Baker, Cairo, for appellant.
Atman, Herndon & Fowler, Larkin M. Fowler, Jr., Thomasville, for appellees.
Syllabus Opinion by the Court
Condemnor appeals from the judgment following an appeal to a jury and from the denial of its motion for a new trial.
The State Highway Department condemned a portion of a lot which included a building used as a combination filling station, grocery store and living quarters. A part of this building was constructed of brick and was 35-40 years old. A frame addition was 20-25 years old. There were also gasoline pumps and tanks on the property taken. The condemnee leased this property to the person who was the actual proprietor of the business. However, they had an agreement that the lessee was to sell the condemnee's petroleum products exclusively, and that the condemnee was to receive a profit on all of these products sold, in addition to the rent. Following an award by the special master, the condemnee appealed to a jury. It is from their verdict and the judgment thereon that the condemnor appeals.
1. Condemnor contends the court erred in charging the jury that if it found that fair market value was not just and adequate compensation, it could award damages based on the value of the property to the owner. In the absence of any evidence that this property had a 'value peculiar to the owner only, and without possible like value to others who might acquire it' the charge was error. City of Gainesville v. Appleby, 118 Ga.App. 25, 27, 162 S.E.2d 460; State Hwy. Dept. v. Stewart, 104 Ga.App. 178, 121 S.E.2d 278; City of Atlanta v. Williams, 119 Ga.App. 330(2), 167 S.E.2d 216.
2. The court also erred in charging that the jury might award compensation without restriction to market value if it found that the condemnee had an established business in a location which could not be duplicated within the immediate area and which business could not survive if not so duplicated. Again, there was no evidence either of peculiar value in that location or of the impossibility of duplication. Indeed, it is difficult to imagine how one of a chain of 50 gasoline stations owned by the condemnee could fall within this category. State Hwy. Dept. v. Hood, 118 Ga.App. 720, 721, 165 S.E.2d 601.
3. Further, the court erred in charging the jury that it could consider reproduction cost of the building without also instructing it to consider depreciation. State Hwy. Dept. v. Murray, 102 Ga.App. 210, 115 S.E.2d 711. While it might be said this was harmless error at this trial (because the verdict was for much less than estimated reproduction cost), it is still error and should not be repeated upon a new trial.
4. Condemnor contends the court erred in allowing a witness to testify concerning the value of a piece of property other than the one in dispute. The sole objection to the evidence was there was no showing of substantial similarity between the two properties. Of course, the general rule on the admission of comparative evidence is that substantial similarity of conditions must be shown to establish...
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