State Highway Dept. v. Murray, 38364
| Decision Date | 15 July 1960 |
| Docket Number | No. 1,No. 38364,38364,1 |
| Citation | 102 Ga.App. 210,115 S.E.2d 711 |
| Parties | STATE HIGHWAY DEPARTMENT v. Lillie MURRAY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In a condemnation action evidence of the replacement cost of the property to be taken is relevant and admissible, however, in a situation where other factors must be taken into account in determining the fair value of the property, if replacement cost is the only evidence as to value of the property, there is not sufficient evidence of value or damage in the record which will justify a verdict of the jury fixing the amount the condemnee is entitled to receive, and accordingly, upon proper motion, the replacement cost testimony should be stricken from the record.
2. Where the only evidence as to the value of property damaged by public improvements is testimony estimating the replacement cost of the property, it is error for the trial court to charge the jury on consequential damages.
The State Highway Department of Georgia brought this action against 0.238 acres of land and Lillie Murray, Leila Mae Murray Scott, Lillie Bell Murray Fleming, Charlie Murray, James Rushin, Charlie Edward Rushin, Mattie Lois Rushin, Willie Rushin and Lillie Mae Rushin, individually. The action was brought by the State Highway Department of Georgia acting for and in behalf of the State of Georgia as plaintiff and condemnor for the purpose of obtaining the property in the exercise of its power of eminent domain for use in a state aid public highway.
In the trial of the case the plaintiff relied upon the testimony of one witness who testified that he was familiar with the value of land in Marion County, and that he had appraised the land to be taken, appraising the land and improvements separately. His appraisal of the land was $125, the house thereon $1,000, and the fencing at $45, making a total appraisal of $1,171 (sic). With this, the plaintiff rested.
One of the defendants, Lillie Murray Fleming, testified that the house to be taken was built 'about a year or more, not over two years ago.' She further testified that the other four houses owned by the defendants would be affected by a fill in front of the property which would make it hart to get in and out. One of these houses was stated to be 20 years or more old and the three others not to be taken were built not more than two years ago. This witness gave no evidence as to the value, stating: 'I do not know the value of those houses now nor the relative position of the height of the road when completed and our land.' Tony Harris, a witness for the defendants, testified that he had been doing construction work, carpentry, and bricklaying in Buena Vista and Marion County for some years and that he had checked these houses, and the cost today of building the house to be taken would be $1,500. He further testified as to the replacement costs of the other four houses varying from $1,500 to $3,000, and that they were in 'fair shape.' He further stated: 'The fair market value would depend upon what they would be worth to the person getting them,' and indicated that the fair market value of these houses would vary but would be about the same as replacement costs. On cross-examination, he stated, 'Frankly, I do not know the fair market value.' Another witness for the defendant testified that the fill in front of the houses not to be taken would be 11 feet at one place and 12 feet at another, and the fill would run in height from 8 to 12 feet in front of the property. The defendant Lillie Murray Fleming was then recalled for further testimony, stating that 'the front part would be worthless if there was a high fill.' She then testified that the houses would not be completely worthless but would be worth less. She further stated: 'They would have some value but I wouldn't testify what the values were' and that 'I do not know what percentage it would reduce the value.'
The jury was then charged and returned a verdict for the defendants in the amount of $3,200 and costs. The plaintiff condemnor filed a motion for a new trial on the general grounds which was later amended to add the following:
Ground 1, that certain material evidence was illegally admitted by the court to the jury over the objection of the movant in that Tony Harris, witness for the defendant, testified as to the replacement costs of the houses. This was objected to as not material and it was moved that it be stricken, but the court overruled the motion and allowed the evidence to go to the jury. This is charged to be prejudicial and hurtful to the movant.
Ground 2, that the court erred in giving the following charge to the jury:
'Now, Gentlemen, the measure of damages to the remaining property or what is known as consequential damages is the difference in value of the remaining property after the taking and building of the road and the value of that remaining property before the taking and building of the road; that is, the difference in value.
'Establish first the fair market value of the land and the improvements that are taken; then establish the consequential damages to the other property, if any; and if the damages to the remaining property exceeds the benefits--add the difference to the fair market value and so return your verdict.'
The movant avers that this charge was erroneous and injurious because there was no evidence sufficient to establish consequential damages in the record and no circumstances from which any amount of consequential damage could be determined by the jury.
On due hearing, the court overruled the motion for a new trial. The plaintiff having excepted to this ruling, the matter is now before this court for review.
Eugene Cook, Atty, Gen., Carter Goode, Asst. Atty. Gen., William M. Mallet, Deputy Asst. Atty Gen., Joseph M. Rogers, Buena Vista, for plaintiff in error.
A. L. Haden, Jr., Columbus, for defendants in error.
The first ground of the amended motion for new trial contends that the evidence of a witness for the defendants, testifying as to the replacement cost of the houses, was illegally...
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