West v. City of Atlanta, s. 45741

Citation180 S.E.2d 277,123 Ga.App. 255
Decision Date06 January 1971
Docket NumberNos. 45741,No. 3,45742,s. 45741,3
PartiesJames I. WEST, Jr. v. CITY OF ATLANTA. CITY OF ATLANTA v. James I. WEST, Jr
CourtUnited States Court of Appeals (Georgia)
Syllabus by the Court

1. Since the compensation to be paid for property condemned is to be determined by its value at the time of its actual taking, a jury can not consider the value at a time prior to the actual time of taking.

2. Where a witness testifies as an expert in a condemnation case that he examined the property prior to and on the date of the hearing before the special master, and again after the date of taking prior to the trial before the jury and the dwelling house located thereon was in substantially the same condition both before and after the taking, the court did not err in allowing this testimony in evidence where the expert witness was testifying as to his valuation of the property.

3. Where an expert witness' answer to a hypothetical question to the effect that these facts as propounded would not have controlled his valuation of the property, complaint that the assumption of facts was not sufficient by the evidence does not show reversible error.

4. Where a requested charge would have been confusing to the jury, the court did not err in refusing to so instruct them.

These two cases involve a condemnation in rem brought by the City of Atlanta against certain property of the defendant West who is the only defendant involved here, the condemnation proceeding being brought pursuant to Code Ch. 36-6A, as amended by Ga.Laws 1957, p. 387, et seq. The suit was properly served, and a special master was appointed. The actual date of taking was March 3, 1969, but before that date, and in January, 1969, a house was moved onto and attached to the land. After a hearing, the special master made an award of $25,000 in favor of the condemnee West. The City of Atlanta filed objections to the findings of the special master in which it claimed that the house had been moved on the property which was not attached on the day of the hearing and could not constitute a part of the realty. It requested the court to retain the funds deposited in the registry of the court pending a determination of the question of fact as to whether or not the house constituted a part of the realty. A hearing was ordered thereon, but later this order was vacated.

The city appealed with 10 days to the superior court, being dissatisfied with the award. Thereafter the appeal was heard before a jury, which returned a verdict for the sum of $18,000. However, pending the trial of the issues a motion was also made by the ondemnor to confine the issue to the value of the real estate alone, claiming that the aforementioned residential structure was not a part of the realty at the time of the condemnation. The court, after a hearing held prior to the trial, refused to confine the issues as requested by the condemnor.

The main appeal is from the judgment which followed the verdict. The condemnor cross appealed from the ruling of the trial court on the question of the nature of the improvements located on the property on or about the alleged date of taking by the condemnor.

Hutcheson, Kilpatrick, Watson, Crumbley & Brown, John L. Watson, Jr., Jonesboro, for James I. West, Jr.

Henry L. Bowden, Ralph C. Jenkins, Atlanta, Albert B. Wallace, Jonesboro, for City of Atlanta.

EVANS, Judge.

1. As found in the transcript of the proceedings in a colloquy between the court and counsel for both parties, the court asked the question of both counsel: 'Now March 3, 1969, is the date of taking, is that correct?' Counsel for both parties replied: 'Yes, sir.' This leaves it by admission of counsel for both parties that the date of taking by the city was March 3, 1969. Therefore, under the authority of Housing Authority of City of Decatur v. Schroeder, 222 Ga. 417, 151 S.E.2d 226, the only question for decision in this case was the value of the property at the time of its actual taking, and the jury could not consider the value of the property at a time prior to the actual taking, which both parties admitted was March 3, 1969. This precludes the questions which the condemnor seeks to raise in the cross appeal, that the condemnee, knowing that his property was to be taken by eminent domain, and for the sole purpose of enhancing the damages, and not in the natural, ordinary and legitimate use of such property, moved or constructed a building...

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9 cases
  • R. E. Adams Properties, Inc. v. City of Gainesville, 47006
    • United States
    • United States Court of Appeals (Georgia)
    • March 17, 1972
    ...the initiation of condemnation proceedings, the date of the award, if the compensation is first paid. Again, in West v. City of Atlanta, 123 Ga.App. 255, 180 S.E.2d 277 the condemnation judgment was entered on March 3, 1969 and this was stipulated by the parties to be the date of taking, wh......
  • City of Dalton v. Smith, A93A1430
    • United States
    • United States Court of Appeals (Georgia)
    • October 28, 1993
    ...418, 219 S.E.2d 707 (1975); Brookhaven Assoc. v. DeKalb County, 187 Ga.App. 749, 750(1), 371 S.E.2d 231 (1988); City of Atlanta v. West, 123 Ga.App. 255, 256-257(1), 180 S.E.2d 277 3. In its third and fourth enumerations of error, the city contends that the court's jury charge regarding adm......
  • City of Marietta v. Edwards, S98G1797.
    • United States
    • Supreme Court of Georgia
    • July 6, 1999
    ...for the right-of-way valued as part of the newly-renovated property on the date of taking. 519 S.E.2d 219 City of Atlanta v. West, 123 Ga.App. 255, 257(1), 180 S.E.2d 277 (1971). Therefore, the fact that the City condemned the right-of-way after the renovation does not constitute evidence o......
  • Department of Transp. v. Katz, s. 66714
    • United States
    • United States Court of Appeals (Georgia)
    • December 1, 1983
    ...is potentially confusing to a jury, particularly in a condemnation proceeding, and should not be given. Cf. City of Atlanta v. West, 123 Ga.App. 255, 258(4), 180 S.E.2d 277 (1971). See also Mercer v. Braswell, 140 Ga.App. 624, 628(3), 231 S.E.2d 431 (1976). Based on the foregoing, we find t......
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