Venable v. State Highway Dept., 52170

• Decision Date: 26 May 1976
• Docket Number: No. 52170,No. 2,52170,2
• Citation: 138 Ga.App. 788,227 S.E.2d 509
• Parties: W. S. VENABLE v. STATE HIGHWAY DEPARTMENT
• Court: Georgia Court of Appeals

Page 509

227 S.E.2d 509

138 Ga.App. 788

W. S. VENABLE v. STATE HIGHWAY DEPARTMENT.

No. 52170.

Court of Appeals of Georgia, Division No. 2.

May 26, 1976.

Morgan & Sunderland, Thomas Stanley Sunderland, Buford, for appellant.

Arthur K. Bolton, Atty. Gen., William C. Joy, Asst. Atty. Gen., Atlanta, for appellee

McMURRAY, Judge.

This is a condemnation case involving an in rem action by the State Highway Department in connection with the widening of an existing highway. A strip of property in front of a beer package store and restaurant was taken.

Subsequent to the filing of the proceedings the holder of a leasehold interest in the property sought to intervene, but was dismissed on summary judgment. In Lee v. Venable, 134 Ga.App. 92, 213 S.E.2d 188 the dismissal of the holder of the leasehold interest was reversed.

The case proceeded to trial, and the jury returned a verdict for the defendant Venable as the owner in the actual damages of $9,000, but did not find any consequential damages. The jury did not award the holder of the leasehold interest, Lee, any sum for the lease but awarded him damages for the loss of his business in the amount of $7,000.

Defendant, Venable, the condemnee, as owner of the land, filed a motion for new trial which was amended and after a hearing denied. Defendant appeals. Held:

1. The burden of proof is on the condemnor to prove the value of the premises or injury thereto, resulting from the taking of the property. Here the condemnor must prove the value of the property taken. This does not prevent condemnor from producing evidence beneficial to itself. Ga. Power Co. v. Brooks, 207 Ga. 406(4), 411, 62 S.E.2d 183.

2. The measure of consequential damages to the remainder of the land not actually taken is the diminution of its market value, if any, just prior to the time of taking, compared with its market value in its new circumstances just after the time of taking. State Hwy. Dept. v. Hood, 118 Ga.App. 720(1), 165 S.E.2d 601.

3. The loss of prospective profits or potential loss of the property may be shown as an item of damages. Central of Ga. Power Co. v. Stone, 139 Ga. 416, 419, 77 S.E. 565; Housing Authority of City of Atlanta v. Troncalli, 111 Ga.App. 515, 142 S.E.2d 93; Bowers v. Fulton County, 221 Ga. 731, 739, 146 S.E.2d 884. But such evidence must not be remote and speculative.

4. Since the State Highway Department as condemnor offered evidence that there were no consequential damages to the remaining property, it cannot be said that if failed to prove the value of the consequential damages which condemnor's witness testified was zero. See Ga. Power Co. v. Brooks, 207 Ga. 406(4), 411, 62 S.E.2d 183, supra. Of course, condemnee offered other evidence to show considerable consequential damages to the property. Nor can you equate the loss of the leaseholder's business as consequential damages but rather as a special element of damages suffered by him. Housing Authority of City of Atlanta v. Troncalli, 111 Ga.App. 515, 142 S.E.2d 93, supra. Bowers v. Fulton County, 221 Ga. 731(2), 739, 146 S.E.2d 884, supra. There is no merit in the first enumeration of error contending condemnor failed to carry the burden of proof.

5. There was testimony that the building would violate the building set back line as shown on a plat admitted as defendant's Exhibit No. 2, but the court did not allow the witness to testify as to the violation of the Gwinnett County zoning regulations or to testify that defendant would be at the mercy of the 'Appeals Board of Gwinnett County Zoning.' No proof of this was otherwise shown. Hence, there was no evidence showing that defendant suffered consequential damages by virtue of the fact that he is no longer able to use the property for any other purpose than that for which it was used, or that the buildings cannot be expanded or enlarged without first obtaining approval of the Gwinnett County Board of Zoning. The evidence failed to establish this to be true. See State Hwy. Dept. v. Hurt, 121 Ga.App. 188, 189, 173 S.E.2d 279. There is no merit in the second enumeration of error.

6. The next enumeration of error complains of the court's failure to properly instruct the jury that the burden of proof was upon the codemnor to prove that no consequential damages existed. The court did generally charge that the burden of proof was on the condemnor to prove by a...