1. On appeal from an award made in a condemnation proceeding for an easement over land, where the evidence shows that the condemnee has, by a prior lease, divested himself of title to valuable minerals in the land, it is reversible error for the court to charge the jury that they should return a verdict in favor of the condemnee for the full amount which they find, from the evidence, the premises will be injured by the easement.

2. Under general law, one party to a suit is not allowed to prove transactions between the other party thereto and a third party — transactions similar in nature but entirely independent. Code (Ann. Supp.) § 36-608 (Ga. L. 1945, p. 143), in allowing the condemnee to introduce evidence of such a character and not allowing the condemnee to do likewise, denies equal protection guaranteed by art. 1, sec. 1, par. 3 of the State Constitution (Code, Ann., § 2-103; Ga. L. 1945), and is void.

3. On the trial of the appeal from an award in a condemnation proceeding, evidence of an offer to compromise or evidence of the amount of an award allowed in another case is inadmissible.

4. Upon the trial of such an appeal, the only issue is the amount of injury sustained by the condemnee, and the burden is on the condemnor to prove such injury.

5. It is not reversible error to admit, over objection, evidence that may be irrelevant when it does not appear that such evidence could possibly be prejudicial to the objector; nor is a juror disqualified because he has, in the same court, served upon a similar case, but one in nowise connected, and has returned a verdict therein.

6. The evidence at another trial may not be the same, and no ruling is made upon the grounds of the motion which bring in question the sufficiency of the evidence.

No. 17209. OCTOBER 10, 1950. REHEARING DENIED NOVEMBER 15, 1950.

This case is an appeal from a final judgment after a jury trial in Wilkinson Superior Court, which was an appeal to that court from an award of assessors under a statutory condemnation proceeding for an easement for an electrical transmission line right-of-way. The condemnation proceeding resulted in an award by the assessors in an amount of $12,000. Pursuant to Code § 36-601, Georgia Power Company, the condemnor and plaintiff in error here, filed an appeal to the superior court and tendered the amount of the award to the condemnee, O. L. Brooks, who is the defendant in error here. After the trial resulted in a verdict and judgment in favor of the condemnee in the amount of $12,000, the condemnor filed a motion for new trial, which was subsequently amended, and also filed a motion to set aside and vacate the verdict and judgment. The bill of exceptions here is to the judgment overruling the above motions.

The general grounds of the motion for new trial are as to the excessiveness of the verdict and that the evidence fails to support the findings of the jury. The first special ground complains of the charge of the court wherein the jury were instructed to find for the condemnee the full value of the damage to the land involved, although, at that time, there existed a mineral lease in favor of Georgia Kaolin Company, which was not a party to the proceeding and would not be bound by the award of the jury. Special ground 5 is also a complaint as to an excerpt of the charge in that it was not a correct abstract principle of law. Special ground 2 assails the constitutionality of Code (Ann. Supp.) § 36-608 (Ga. L. 1945, p. 143), which authorizes a condemnee to prove the value of comparable property wheresoever situated, and to introduce in evidence the price paid by the condemnor for any comparable property acquired within two years prior to the condemnation proceeding. Special grounds 3 and 4 are complaints as to the illegal introduction of certain testimony, and statements of counsel for the condemnee made before the jury. Special ground 6 complains of the court allowing a witness to answer a hypothetical question, wherein the question assumed facts that had not been proven. Special ground 7 is a complaint as to the court's refusal to purge certain jurors from the panel of jurors; and special ground 8 is merely an argument in favor of the general grounds as to the excessiveness of the verdict. The motion to set aside and vacate the verdict and judgment is a contention by the condemnor that the judgment does not conform to the verdict and is not authorized by the verdict and, for this reason, is null and void.

DUCKWORTH, Chief Justice.

1. The first special ground of the motion complains of the charge wherein the court instructed the jury that they should first determine the fair market value of the land embraced in the easement, described as 100 feet in width and 1935 feet in length; that, in doing this, the jury should take into consideration the nature and character of the land and whether or not it contained valuable mineral deposits; and that they should find in favor of the condemnee for the fair market value of the land, and, further, any damages resulting to other lands if they found that any such damage resulted to other lands of the condemnee. This ground is bottomed upon the fact that there was evidence that, prior to the institution of the condemnation proceeding, the condemnee had executed to a third party a lease or option conveying the kaolin and other minerals in the land for a consideration of $600 per year and, in addition, twenty-five cents per ton for bauxite and fifteen cents per ton for kaolin and other minerals when mined and taken from the land. This instrument was to remain of force for twenty-five years, but was terminable at any time by the lessee upon thirty days' notice; and it was contended that the charge required the jury to compensate the condemnee for damages to the lessee and damages which the condemnee would not sustain. There is abundant evidence in this record showing the amount of kaolin and silica sands in the land embraced in the easement and showing that these constituted the major value of the land. We may put aside at this point all consideration of allegations of the pleadings or the necessity for a request to charge as being irrelevant to a determination of the question raised, for the reason that, when the judge undertook to instruct the jury as to what damages or injuries the condemnee should be compensated for, it was erroneous for him to incorrectly state the damage for which compensation was allowed. As stated above, there was evidence as to the existence of the lease, and its existence was admitted by the condemnee. The holder of the lease is entitled to compensation for its injury. See 18 Am. Jur. 865, § 232; Comer v. Newman, 95 Ga. 434 ( 22 S.E. 634); Pause v. City of Atlanta, 98 Ga. 92 ( 26 S.E. 489); L. N. R. Co. v. Henderson, 140 Ga. 655 ( 79 S.E. 556). Apparently the trial judge, in giving the charge complained of, overlooked the sole issue in the case, which was the injury to the interest of the condemnee in the property involved. Since this condemnee owned and held the land subject to the interest therein of his lessee, he was not entitled to compensation for the injury to the interest of the lessee, and the court erred as contended in this ground of the motion for new trial.

2. The second special ground complains of the ruling allowing the condemnee to prove prices that the condemnor had paid under agreements with other parties for similar easements; and this ground assails Code (Ann. Supp.) § 36-608 (Ga. L. 1945, p. 143), which authorizes a condemnee to make such proofs, upon the ground that it offends art. 1, sec. 1, par. 3 of the Constitution of this State (Code, Ann., § 2-103; Ga. L. 1945), wherein equal protection is guaranteed. In Brunswick Albany R. Co. v. McLaren, 47 Ga. 547 (2), it was held that it was not permissible in a condemnation case to prove what another had paid for a similar easement. In Flemister v. Central Georgia Power Co., 140 Ga. 511 (6) ( 79 S.E. 148), it was held that, in the trial of an appeal from the award of appraisers in a condemnation case, it was permissible to introduce evidence of sales of property similar to that in question, made at or near the time of taking. And in Merchants National Bank of Rome v. Greenwood, 113 Ga. 306 ( 38 S.E. 826), it was held that evidence of transactions of similar nature, but entirely distinct, with a third party was not admissible.

The general rule is that it is not competent in such cases to prove what the condemnor has paid others for similar easements (118 A.L.R. 869, 875, 893); this general rule being based upon the consideration that in such transactions neither party is necessarily free from compulsion — the necessity to acquire as to the one party and the positive necessity to give up on the part of the other. This general rule was applied in this State until the enactment now embodied in Code (Ann. Supp.) § 36-608 (Ga. L. 1945, p. 143). It is therefore plain that, under the general rule, and in the absence of the section attacked, the evidence was subject to the objection. Thus is demonstrated the necessity of ruling on the constitutional question here raised. Since the section allows the condemnee to prove such transactions, but does not allow the condemnor the same right, it does not afford equal treatment, and, hence, is a denial of equal protection to the condemnor, offends art. 1, sec. 1, par. 3 of the Constitution of Georgia (Code, Ann., § 2-103; Ga. L. 1945), and is void. It follows that the evidence was not admissible and the court erred in admitting the same.

3. Special grounds 3 and 4 complain because counsel for the condemnee was allowed, over objection, to get before the jury evidence of offers to compromise, and also evidence as to the amount of an award in another case between the condemnor and a third party; and complaint in these grounds is further made because of certain statements made in the presence of the jury by counsel for the condemnee. The court ruled that evidence of compromise was inadmissible, and that evidence as to the amount of the award was admissible, but, after counsel for the condemnee withdrew the question, this evidence was likewise ruled out. We deem it necessary here only to rule that evidence as to compromise and as to the amount of an award made in another case was inadmissible, and upon another trial should not be allowed.

4. Special ground 5 complains of an excerpt from the charge wherein the burden was said to be on the condemnor to prove the value of the premises or injury thereto resulting from the easement. The movant does not strongly contend that this is an incorrect rule, and it is recognized that in Streyer v. Ga. Sou. Fla. R. Co., 90 Ga. 56 ( 15 S.E. 637), and in Georgia Power Co. v. McCrea, 46 Ga. App. 279 ( 167 S.E. 542), it was held that the burden was upon the condemnor. But it is strongly contended that the ruling in Postal Telegraph c. Co. v. Peyton, 124 Ga. 746 ( 52 S.E. 803), is in conflict therewith, and that this court should now eliminate the conflict. While there are involved such matters as requiring the condemnor to make proof against its interest and the necessity for evidence to authorize the amount found for the condemnee — which would suggest that the condemnee should have the burden of proving injury, however, the basic and controlling requirement is the constitutional command that, before such taking of private property for public use, the taker must first pay therefor, and this burdens the taker to prove the value thereof. To obtain a verdict fixing that value, the taker must introduce evidence showing value. At any rate this has been the recognized rule since the decision in Streyer v. Ga. So. Fla. R. Co., supra, and we are not inclined to change it. As to the ruling in Postal Telegraph c. Co. v. Peyton, supra, we find no conflict there with the above decisions. It was simply held that the amount of the verdict for the condemnee was not authorized by the evidence. That ruling is consistent with the ruling placing the burden of proving the value upon the condemnor. In all cases the parties are privileged to produce evidence that is beneficial to themselves, irrespective of the evidence of the other party. The charge complained of accords with the rule, and this complaint is without merit.

5. In special ground 6 complaint is made because the condemnee was allowed to prove that mining of kaolin and silica sand, if done at the same time, would be less expensive. Whether or not such evidence was relevant, it does not appear that it could possibly have been prejudicial to the condemnor. Special ground 7 complains because the court refused to allow the condemnor to purge the jury of jurors who had rendered a verdict in another similar condemnation case. Obviously such jurors were not disqualified, and the court did not err in the ruling complained of. Special ground 8 is an elaboration of the general grounds; and since the evidence may not be the same at another trial, no ruling will be made on the general grounds.

Judgment reversed. All the Justices concur.