Theo v. Department of Transp., 62233
| Decision Date | 12 November 1981 |
| Docket Number | No. 62233,62233 |
| Parties | THEO et al. v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Court of Appeals |
George P. Dillard, Decatur, for appellants.
Jay Bennett, Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Sr. Asst. Atty. Gen., Atlanta, for appellee.
This condemnation action was initiated by declaration of taking pursuant to Code Ann. § 95-601 et seq. The department took for highway improvement purposes approximately 2.9 percent (or 2,158 square feet) of a 1.7-acre tract developed as a shopping center. The jury returned a verdict for the condemnees in the amount of $4,484, which was somewhat less than the amount which the department had paid into the registry of the court. In this appeal by three of the condemnees, 30 alleged errors are enumerated. Held :
1. The department has moved to dismiss the appeal, alleging that one of the original condemnees, who did not file a notice of appeal from the declaration of taking and who is not a party to this appeal, has pending below an application to be paid her portion of the amount originally paid into the registry of the court by the department. Because of this, and because there is no final judgment directing an allocation and distribution of the amount awarded by the jury, the department contends that the case is still pending below. However, since there are no substantive issues remaining to be litigated in the case, we conclude that the judgment denying the appellants' motion for new trial is final within the meaning of Code Ann. § 6-701(a)(1). The motion to dismiss is accordingly denied. Accord Herring v. Herring, 143 Ga.App. 286(1), 238 S.E.2d 240 (1977).
2. The verdict was within the range of the evidence, and the attacks on the sufficiency of the evidence are without merit.
3. Appellants contended at trial that the elevation of the level of the highway in front of their remaining property made access more difficult and thus lessened its value as a shopping center. In alleged support of this contention, they sought to introduce four photographs taken of the roadway and adjacent property during the construction process. The trial court properly excluded these photos on the basis of the well-established rule that "damages caused by mere temporary inconvenience due to the construction of the project for which the property was taken is not a proper element for consideration in determining just and adequate compensation for condemned realty." Southwire Co. v. D.O.T., 147 Ga.App. 606, 610(4), 249 S.E.2d 650 (1978), quoting D.O.T. v. Dent, 142 Ga.App. 94(1), 235 S.E.2d 610 (1977). We reject the appellants' argument that the photos "show the extent to which the property in the easement area was changed and the grade raised, resulting in an interference with access." What they show primarily is interference caused by the construction process; and other photos introduced into evidence, which were taken after completion of the construction, were adequate to illustrate the point the appellants contend that they were trying to make.
4. The court erred in charging the jury that they could reduce the amount of consequential damages to the remainder by the amount of special consequential benefits, as there was no evidence from which the jury could have formed a reasonable estimate of the amount or value of such benefits. See Andrus v. State Hwy. Dept., 93 Ga.App. 827(3), 93 S.E.2d 174 (1956). The department argues that such evidence was provided by the testimony of its appraiser that the property was worth $196,000 before the taking, combined with testimony from the appellant's appraiser that the remainder was worth $198,500 after the taking. However, in view of the fact that both these witnesses testified that the value of the remainder was less than the value of the original parcel prior to the taking, we consider this argument somewhat less than compelling. We also reject the department's contention that there was evidence from which the jury could have found a specific increase in rental values resulting from the improvements. The charge on special consequential benefits must thus be considered reversible error. See Andrus v. State Hwy. Dept., supra.
5. The judge did not err in charging the jury that a condemnee cannot recover for mere inconvenience in the use of his property resulting from the condemnation, except insofar as such inconvenience is shown to affect the value of the remaining property as an item of consequential damages. See Southwire Co. v. D.O.T., supra, 147 Ga.App. at 610(4), 249 S.E.2d 650. The charge was a correct statement of law and could not have harmed the appellants, particularly, if, as they all...
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