State Highway Dept. v. Owens

• Decision Date: 23 October 1969
• Docket Number: No. 44753,No. 1,44753,1
• Citation: 171 S.E.2d 770,120 Ga.App. 647
• Parties: STATE HIGHWAY DEPARTMENT v. D. R. OWENS et al
• Court: Georgia Court of Appeals

Page 770

171 S.E.2d 770

120 Ga.App. 647

STATE HIGHWAY DEPARTMENT v. D. R. OWENS et al.

No. 44753.

Court of Appeals of Georgia, Division No. 1.

Oct. 23, 1969.

Rehearing Denied Nov. 13, 1969.

Certiorari Denied Jan. 26, 1970.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Atlanta, Richard L. Chambers, Asst. Atty. Gen., Robert L. Royal, Oscar M. Smith, Deputy Asst. Attys. Gen., Rome, John T. Minor, III, Dalton, for appellant.

Mitchell & Mitchell, Coy H. Temples, Dalton, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

This is a case seeking to condemn land for highway purposes and for construction and drainage easements connected with the same. The proceedings are in rem and against the owners and the holder of a lien on the property. the land was condemned, the condemnees appealed, and after a trial the jury found in favor of the condemnees a named sum, and judgment was entered thereon. A motion for new trial, as amended, was filed by the Highway Department, heard and overruled; and the appeal is from that judgment. The errors enumerated are, in substance, the same as those found in the motion for new trial, as amended. Held:

1. The right to cross examination, thorough and sifting, shall belong to every party, but it shall be the right of the witness to be examined only as to relevant matter. Code §§ 38-1704, 38-1705. Counsel for the Highway Department, in cross examining a witness, was attempting to show the defendant had knowledge of the intended condemnation before he began construction of apartments on his property. Opposing counsel objected to the question as being irrelevant and immaterial for the taking and damage would apply even if it were purchased the day before condemnation. This objection was sustained. Again the court refused to allow counsel for the Highway Department on direct examination to go into matters showing the condemnees knew of the project before they began construction. The court also sustained an objection as to a rebuttal witness attempting to show that condemnees knew where the improved highway would be located before they built the apartment building, and he also refused to allow argument thereon before the jury. Error is enumerated on all of these matters. All of these errors involve the question of the relevancy of such questions to the taking and damaging of the condemnees' property. Since the question to be determined by the jury was the value of the property at the time of its taking for public purposes on the date that it was taken, which was the date that the property was condemned, the court did not err in restricting counsel in its direct, rebuttal and cross examination of the witnesses with reference to knowledge of the condemnees that the highway was to be located at or near their property at the time they purchased it, and in refusing to allow final argument thereon by counsel. None of these enumerations of error are meritorious.

2. Objection is made to the charge of the court to the jury that it must determine the value of the land at the time of the taking, the objection being that it failed to give the jury the correct measure of damages to be applied in determining the amount due because of the imposition of the drainage easement and the construction easement, and it was confusing in that the jury was instructed to find the full market value of the land taken. Generally, the ultimate and only measure of damages to real property in a case such as here is its diminished market value. But see Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884, which is not controlling here. While the fee in the drainage easement was not taken yet the easement was a perpetual one, and since the court instructed the jury as to...