Wright v. Metropolitan Atlanta Rapid Transit Authority

• Decision Date: 27 October 1981
• Docket Number: No. 37152,37152
• Parties: WRIGHT et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
• Court: Georgia Supreme Court

Page 466

283 S.E.2d 466

248 Ga. 372

WRIGHT et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.

No. 37152.

Supreme Court of Georgia.

Oct. 27, 1981.

Harry L. Cashin, Jr., Frank L. Wilson, III, Frank Love, Jr., Atlanta, for Seaborn Wright, Jr., et al.

Charles N. Pursley, Jr., Jo Lanier Meeks, Atlanta, for Metropolitan Atlanta Rapid Transit Authority.

GREGORY, Justice.

This case involves the proper measure of consequential damages in a condemnation case. Appellants owned a 31,842 square foot tract of land in downtown Atlanta, bounded on its east side by West Peachtree Street, on its west side by Spring Street, and on its south side by Pine Street. A 6,302 square foot portion of the tract adjacent to West Peachtree Street was condemned by MARTA for the purpose of constructing a rapid transit station and related facilities. The date of taking was September 8, 1977. ¹ Construction began in October of 1977 and was scheduled to be completed by the latter part of 1981.

The proposed construction plan included raising West Peachtree Street 20 feet. Pine Street would no longer cross West Peachtree; that part adjacent to appellants' property would terminate at a 22-foot concrete wall supporting West Peachtree's embankment. No part of appellants' remaining property would continue to have street level access to West Peachtree. However, upon completion of the project, appellants' remaining property would be on the same level as and have direct access to the nearest station entrance 250 feet away. This entrance would be connected by a stairway to West Peachtree Street.

The case was initially referred to a Special Master who awarded appellants $119,800 for the property taken and $161,181 as consequential damages to the remainder. Condemnor appealed and the case was tried before a jury. The jury awarded appellants $116,600. ²

Appellants contend the trial court's instructions on consequential damages directed the attention of the jury to the value of the remaining property at some time in the future after the improvements had been completed rather than at the time of taking as mandated by Article I, Sec. III, Par. I of the Georgia Constitution (Code Ann. § 2-301).

The Court of Appeals affirmed the trial court on the basis of this court's opinion in Elliott v. Fulton County, 220 Ga. 377, 381, 139 S.E.2d 312 (1964), but went on to say: "Nonetheless, we feel compelled to express our view that the subject charge is vulnerable to appellants' attack." Wright v. MARTA, 156 Ga.App. 704, 706, 275 S.E.2d 766 (1981). We agree with the Court of Appeals that the charge as given is vulnerable to appellants' attack and reverse for reasons that follow.

Article 1, Sec. 111, Par. 1 of the Constitution (Code Ann. § 2-301) states in pertinent part: "Private property shall not be taken, or damaged, for public purposes without just and adequate compensation being first paid ..." (Emphasis supplied). Where there is a physical taking of land, just and adequate compensation for the taking is determined as of the date of taking, Gate City Terminal Co. v. Thrower, 136 Ga. 456(2), 71 S.E. 903 (1911); Hard v. Housing Authority of the City of Atlanta, 219 Ga. 74, 132 S.E.2d 25 (1963); Housing Authority v. Schroeder, 222 Ga. 417, 151 S.E.2d 226 (1966).

Where a portion of property is taken for a public use, the condemnee is entitled to compensation for consequential damages to the remainder caused by the taking. This has long been the rule in Georgia, even though the words "or damaged" were first included in the Constitution of 1877. ³ See Young v. Harrison, 17 Ga. 30 (1855); Jones v. Wills Valley Railroad Co., 30 Ga. 43 (1860). Generally speaking, the measure of consequential damages is the diminution, if any, of the market value of the property not taken, caused by the taking of the part which is taken and the devoting of it to the purposes for which it is condemned. McArthur, et al v. State Highway Department, 85 Ga.App. 500, 69 S.E.2d 781 (1952). ⁴

In this case, appellants' two appraisers testified that as a result of loss of access to West Peachtree Street, the value of the remainder of appellants' property decreased approximately $150,000. One testified that he expected no consequential benefits from the proximity of the MARTA station because the impact of MARTA had already been reflected generally in market values of property in the area by the time of the taking. The other testified that whether or not access to a MARTA station was going to greatly increase property values could only be a matter for speculation; the system had not been in operation long enough.

MARTA's appraiser testified that the loss of access to West Peachtree would cause the value of the remainder of the property to decrease $65,900, but that would be more than offset by the potential for economic growth caused by the MARTA station. In his opinion, the location of the Civic Center Station would have a positive impact on property values. The appraiser did not compute a dollar amount for the special benefits, but testified that they "...would at least offset the sixty-five thousand nine hundred, and quite possibly, in my opinion, the benefits would be in excess of fifteen per cent as time goes on." While he testified that he was talking about the value determined as of the date of taking, September 8, 1977, he also testified that, "the evaluation of the remaining property in my opinion has to assume the station and all improvements existing at that time ... and I would suggest as an appraised value of today, in 1979, that that remaining property is in excess today of eighteen dollars fifty cents..." ⁵ "I believe that property ... from that time to today has increased over this period of time..." The trial court charged the jury, in part, that: "The measure of consequential damages, if any exists for the part of the property not taken, is the difference between the market value of the property any part is acquired and before the public improvements are made, and the market value of the remainder of the property after the part is acquired and the improvements made." ⁶ The charge given was based on a charge approved in State Highway Board v. Bridges, 60 Ga.App. 240(2), 3 S.E.2d 907 (1939). This charge clearly directed the jury to look to a time when the improvements would be completed and to value the remainder as of that future date.

Hard and Schroeder, supra, establish that where property is physically taken, the owner is entitled to the value of the property as of the date of taking. Consequential damage to property is a "taking" entitling the owner to compensation, ⁷ and where part of a tract is taken, consequential damages to the remainder must be sought, if at all, during the proceedings to establish the value of the land taken. A judgment of condemnation precludes a subsequent action for consequential damages unless they result from negligent or improper construction. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958); Gilbert v. Savannah, Griffin, and North Alabama Railroad, 69 Ga. 396 (1882); DeKalb County v. Cowan, 151 Ga.App. 753, 261 S.E.2d 478 (1979).

The diminution in value of the remainder that is the measure of consequential damages should be measured as of the date of the taking. This appellee apparently concedes. Appellee contends that was done in this case because the jury compared the market value of the remainder before the taking with the market value of the remainder on September 8, 1977, as if the MARTA station was completed at that time. It is not clear to us that the jury did this, rather than looking to the value of the property in 1981 when the...