Tift v. State Highway Dept., 37483

• Decision Date: 21 March 1959
• Docket Number: No. 37483,2,Nos. 1,37483,s. 1
• Parties: T. W. TIFT, Sr. v. STATE HIGHWAY DEPARTMENT
• Court: Georgia Court of Appeals

Page 724

108 S.E.2d 724

99 Ga.App. 387

T. W. TIFT, Sr. v. STATE HIGHWAY DEPARTMENT.

No. 37483.

Court of Appeals of Georgia, Division Nos. 1, 2.

March 21, 1959.

Rehearing Denied April 2, 1959.

Syllabus by the Court

The court did not err either in denying the motion for a new trial on the general grounds or on any of the fourteen special grounds.

The State Highway Department of Georgia filed condemnation proceedings to condemn 33.155 acres of land belonging to T. W. Tift, Sr., for right-of-way purposes in the construction of a part of the state highway system. Both parties appealed from the award of the appraisers. After jury verdict the condemnee filed a motion for a new trial on the general grounds and fourteen special grounds beginning with special ground 4 and continuing through special ground 17. The court overruled the motion for a new trial on all grounds and the condemnee excepts.

Seymour S. Owens, Tifton, J. C. McDonald, Fitzgerald, for plaintiff in error.

Eugene Cook, Atty. Gen., Paul Miller, Asst. Atty. Gen., John L. Jernigan, Deputy Asst. Atty. Gen., Maxwell A. Hines, Tifton, for defendant in error.

FELTON, Chief Judge.

1. The court did not err in overruling the general grounds of the motion for new trial. The amounts found by the jury to cover the value of the land actually taken and the consequential damages to the adjoining lands not taken were within the range of the evidence.

2. Special ground 4 is without merit. The complaint in this ground was the refusal of the court to permit the witness J. M. Keaton, Jr., a witness for the condemnor, to answer the following question 'How much water in your opinion will be conducted down there by that pipe * * *?' The condemnor's objection to the question was that it called for a guess on the part of the witness, because he had no facts showing the amount of rainfall, the size of the area being drained, as all the facts should be taken into consideration to show the amount of water that would be drained down the pipe. The attorney for the movant with permission of the court stated to the court that he expected the witness to testify as to the amount of water drained during a month, a week, or a certain period of time which would be conducted into that area and stated that the witness was the engineer in charge of the project and that he installed the 36--inch pipe through which the water, which was the subject of discussion, ran. Movant contended in this ground that the water which would flow through the pipe during a certain period of time would be relevant on the question of consequential damages, and a failure to permit the question to be asked was a restriction on the right of movant's privilege of cross-examination.

It was not error for the court to refuse to permit the question and answer. In the first place the question could not be intelligently answered, because no period of time was stated with reference to the water which would flow through the pipe. The evidence shows that the witness did not determine the size of the pipe which should be installed and that his opinion was not requested on the subject. This ground of the motion does not show that the court refused to permit the witness to give his opinion as to what amount of water would flow through the pipe during any definite period of time and under definite circumstances or that movant was restricted in any way from obtaining the opinion of the witness as to whether the construction of so much of the project that necessitated the installation of the pipe would result in overflowing the remaining lands of the condemnee.

3. In special ground 5 movant complains that the court excluded the testimony of J. M. Keaton, Jr., a witness for the condemnor, with reference to the cost to the condemnee of building a road 60 feet wide, 2,000 feet long with a 20--foot strip of asphalt in order to overcome the hazardous approach to the remaining lands of the condemnee caused by the taking of the other property of the condemnee. The objection to the question by the condemnor was that it was irrelevant and immaterial because there was no evidence to show how the condemnee would place it, no evidence to show the grade, what amount of dirt would be removed from the right-of-way or how much would be put in, that there was no evidence to show the type of soil, all of which things would enter into the building of the road. The court did not err in excluding this question and in refusing to permit it to be answered. The court did not err for the reason that there was no evidence that the condemnee would build a road of some kind in order to correct the hazardous approach to his other land; there was no evidence that the particular road described in the question was justified or reasonable in the circumstances and we think that the question of the necessity and reasonableness of the road was so problematical that the answer to the question would have been prejudicial to the condemnor and, since there was no assurance that the condemnee would build such a road, the answer might have resulted in the jury's awarding the condemnee an amount to cover the damage to the adjoining property without such a road and add to that award the amount of the cost of the road.

4. Special ground 6 complains of the ruling out of a similar question and is covered by the reasoning in the foregoing division.

5. Special ground 7 complains that the court would not permit Hugh F. Gibson, a witness for the condemnor, to answer the question whether an engineer by the name of Mr. Woellert, in showing the premises to the witness, had told the witness that there had been fences taken down off the property. The objection to the question was that the answer would be hearsay. The court did not err in sustaining the objection to the question. What Mr. Woellert told Mr. Gibson would be hearsay, and it does not appear that Mr. Woellert was the agent or representative of the condemnor so as to bind the condemnor in any way in the premises. The question could easily have been asked the witness whether he considered the fact that the fences had been taken down in his judgment as to the value of the land. The witness testified that Mr. Woellert did not mention to him 329 pecan trees and the witness stated that he had considered them and put down their value to consider in his estimate. All the condemnee had to do, in order to test the validity of the witness' estimate, was to ask whether he included the fences which might have been taken down.

6. Special ground 8 contains an assignment of error basically the same as made in special ground 7 except that it relates to what Mr. Woellert told Mr. Gibson about the improvements on the land actually taken. There is no merit in special ground 8.

7. Special ground 9 complains of the failure to permit Hugh F. Gibson, a witness for the condemnor, to answer the following question: 'So there would not have been a tremendous expense in preparing that land for filling stations, and things like that because it was even with the 41 Highway?' There was no error in ruling out the question and answer for the reason that the question was too indefinite to be susceptible of an intelligent answer. The jury viewed the premises in this case, and even if the judge's ruling could be called doubtful in the slightest, we think that, under the circumstances, the judge did not abuse his discretion in disallowing the answer.

8. Special ground 10 complains that J. H. Wideman, a witness for the condemnor, was permitted to state that certain dwelling houses and tobacco barn had been moved from the land taken in this proceeding onto the abjoining lands of the condemnee. The objection to this testimony was that it was prejudicial to the condemnee for the reason that it possibly led the jury to believe that these houses had been moved off the right of way condemned and onto other lands of the condemnee and as a result the condemnor was not liable to pay the condemnee the fair market value of such houses since they were still on land belonging to the condemnee. We think that this testimony was admissible as a circumstance in the ascertainment of the value of the lands taken. It is presumed that the court correctly charged the jury on the measure of damages in the case in the absence of any exception to the charge and, since the jury viewed the premises, we do not believe that the testimony could have been harmful to the condemnee's rights.

9. Special ground 11 complains of the failure of the court to permit J. H. Wideman, a witness for the condemnor, to answer the question whether he saw the avenues which had been opened up to the land actually taken. The witness answered, 'I didn't see the names of them.' The objection to the question was that the witness did not designate the avenues and the question was too indefinite for the witness to answer. The answer to this question was certainly not harmful, and since the jury viewed the premises, it does not seem to us that the court erred in ruling out the question. However, the witness did not answer the question asked and there was no effort on the part of the condemnee to repeat the question and there is no showing that the court at any time refused to permit the witness to testify definitely with reference to the avenues that he saw. This ground is without merit.

10. The complaint in special ground 12 is that the court did not permit J. H. Wideman, a witness for the condemnor to give his opinion as to the value of lots on the southern portion of the land...