Opinion
40718.
DECIDED MAY 18, 1964.
Condemnation of land. Cook Superior Court. Before Judge Lott.
Eugene Cook, Attorney General, Richard L. Chambers, Paul Miller, E. J. Summerour, Assistant Attorneys General, J. Lundie Smith, Asa D. Kelley, Jr., Deputy Assistant Attorneys General, S. B. McCall, for plaintiff in error.
Hugh D. Wright, Edward Parrish, contra.
1. Absent any evidence authorizing the jury to find that property being condemned was suitable for other uses or from which it might reasonably infer its suitability for other uses, a charge that the jury might, in estimating its fair market value, consider other uses to which it might be devoted was error.
2. Assignments of error upon the sufficiency of evidence to support the verdict and as to its excessiveness are not considered since a new trial must result because of the reason stated above, for both the evidence and the result may be different upon another trial.
DECIDED MAY 18, 1964.
In connection with its acquisition of a right of way for the construction of Interstate Highway No. 75 through Cook County the State Highway Department instituted condemnation proceedings against J. C. Whitehurst, the owner, and against others who held liens or security interests, to obtain substantially all of his property on which he had a stock pen, abattoir and sausage processing business. Though there was a small parcel of land remaining it was stipulated that the value of it was so reduced until the taking should be considered as entire in character.
The verdict for $15,000 was substantially greater than the value placed on the property by any witness for the condemnor and is supported, if at all, only by the testimony of the condemnee and one of his witnesses, Cauley Harris. Whitehurst testified that the property had a market value of $19,000 and on cross examination stated that this was based "on the amount of construction, the location where I was situated, and the convenience it was to me and to the public to get in and out from there" and "on what it was worth to me." Breaking the items of improvement down and separating the value of them from the land itself he testified that the land was worth from $2,000 to $2,500, two vats were of the value of $1,000, the stock pen was worth $800, a smokehouse $1,000, the refrigeration $3,000, the building $2,500 and the electrical wiring, etc. $500, or (using $2,500 for the land value) a total of $11,300.
Harris testified that the entire property was, in his opinion, of the market value of from $16,000 to $18,000. On cross examination he conceded that he knew nothing of the value of any of the improvements and that his knowledge of value was limited to the land.
The following was charged to the jury:
"I charge you that in estimating the value of land when taken for public uses the jury is not restricted to its agricultural and productive qualities, but inquiry may be made as to other legitimate purposes to which the property could be appropriated or used.
"Where private property is taken or sought to be taken for public use the owner is entitled to compensation for its whole, and not for any particular purpose, but for all purposes to which it may or could be appropriated, as shown by the evidence.
"In estimating its value the capabilities of the property and the use to which it may be applied, and to which it had been applied, are to be considered, and not the mere condition it is in at the time and the use to which it is then applied by the owner. All the facts as to the condition of the property and its surroundings and improvements and capabilities may be shown, and, if shown, be considered by the jury in estimating its value."
Amending its motion for new trial the State Highway Department assigned error upon the portions of the charge quoted as being unauthorized by any evidence from which the jury might have concluded or inferred that the property involved had any reasonable potential for uses other than that to which it was devoted at the time of the taking, and upon the verdict as being excessive and without evidence to support it.
To the overruling of the motion as amended, condemnor excepts.
1. Though the charge is correct as an abstract principle of law (see Code § 36-505), we think the exception is meritorious. This court dealt with a charge similar in nature in State Hwy. Dept. v. Weldon, 107 Ga. App. 98 ( 129 S.E.2d 396) and held it to be error. The landowner urges that there are differences in the charge there and here requiring a different result. The only difference in the charge in Weldon and that with which we deal here is that here the court added at the end of the second paragraph the phrase "as shown by the evidence." It is insisted here that the addition of this phrase so limited and qualified the charge as to instruct the jury, in effect, that if other uses were not shown by the evidence the principle was not to be considered or applied.
This position is rendered untenable by State Hwy. Dept. v. Allen, 108 Ga. App. 388 ( 133 S.E.2d 64) where the charge excepted to was identical with the one upon which error is here assigned. Further, in Central Ga. Power Co. v. Cornwell, 139 Ga. 1 ( 76 S.E. 387, AC 1914A 880), the Supreme Court holding it unwarranted by the evidence, confusing, calculated to mislead the jury and requiring a new trial, dealt with an assignment of error upon a similar charge. Thus we are bound and cannot consider the contention that the charge, though error, is harmless.
The record in the Supreme Court reveals that in ground 4 of the amended motion error was assigned upon the charge: "The market value of property includes its value for any use to which it may be put. If by reason of its surroundings, or its natural advantages, or its artificial improvements, or its intrinsic character, it is particularly adapted to some particular use, and the circumstances which make up this adaptability have been shown, you may take such conditions into consideration in estimating its market value," the exception being that there was no evidence of any artificial improvements on the land.
In ground 10 error was assigned on the charge: "In getting at the market value of said property your inquiry will be, what was the property worth on November 10, 1910, viewed not merely with reference to uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted," the exception being that there was no evidence to support it, or to authorize the suggestion that the property was worth more for uses to which it was not at the time of taking being applied.
In ground 12 error was assigned on the charge: "In estimating the market value of property, all the reasonable capabilities of the property, and all the uses to which it may be applied, or for which it is adapted, are to be considered, and not merely the condition it is in at the time and the use to which it is then applied by the owner," the exception being that it was without evidence to support it and that there was no evidence to authorize the suggestion that the property was either reasonably capable or adapted to any use to which it was not then being applied and which would enhance its value.
Just prior to giving these charges the court had charged: "In ascertaining its market value you may look to the evidence and consider everything with reference to the location of the property, its surroundings and appurtenances, making it available for valuable uses, if any such appears," and following the charges excepted to the court charged additionally: "Look, then, to all the evidence throwing light upon this property, its capabilities, the uses to which it may be applied, and then determine from the evidence as presented before you what the market value of the property is."
We have read and examined carefully the evidence here and find in it nothing which would have authorized any finding that the property being condemned was suitable for any use other than that to which the owner had devoted it when the condemnation proceeding was brought. The charge was error.
2. The evidence of the condemnee and his witness, Harris, was equivocal. But since we are reversing for the reason given above it is not necessary that we decide whether it was sufficient to constitute "some evidence" of market value upon which the verdict could be sustained. The evidence will probably be different upon another trial.
Judgment reversed. Bell, P. J., and Jordan, J., concur.