Opinion
39578.
DECIDED OCTOBER 5, 1962.
Condemnation of land. Cook Superior Court. Before Judge Lott.
Eugene Cook, Attorney General, Carter Goode, Paul Miller, E. J. Summerour, Assistant Attorneys General, William J. Gibbons, Asa D. Kelley, Jr., Deputy Assistant Attorneys General, S. B. McCall, for plaintiff in error.
Seymour S. Owens, W. E. Rice, James B. Whiddon, contra.
A charge not authorized by evidence is harmful error when it appears that the jury could have been misled thereby.
DECIDED OCTOBER 5, 1962.
The State Highway Department of Georgia filed a petition in the Superior Court of Cook County to condemn a strip of land approximately 10 feet wide and 537 feet long, as the property of Mrs. Mattie J. Bennett, fronting on a "non-limited access" highway. On the trial of an appeal from the award of the assessors, the jury returned a verdict in favor of the condemnee in the amount of $5,000. From the overruling of the condemnor's motion for a new trial, the condemnor appealed.
The condemnor complains that the court erred in charging the jury as follows: "I charge you, gentlemen of the jury, that a limited access highway is a highway, road or street for through traffic, and over, from and to which owners or occupants of abutting land, or other persons, have no right or easement, or only a limited right or easement of access, light, air or view by reason of the fact that their property abuts upon such limited access highway, or for any other reason. I also charge you that a limited access highway may be so designated as to regulate, restrict, or prohibit access thereto so as to best serve the traffic for which such facility is intended. No person shall have any right of ingress or egress to and from, or passage across, any limited access highway to or from abutting land, except at the designated point to which access may be permitted, and under such arrangements and conditions as may be specified from time to time. Now, a second element to be considered in this case is whether or not consequential damages will naturally and proximately arise to the remaining property of Mrs. Bennett from the taking of that part which is taken and the devoting of it to the construction and maintenance of a limited access highway."
The evidence shows that the strip of land condemned did not adjoin a limited access highway, and the remaining property of the condemnee from which the strip of land was taken did not adjoin a limited access highway. The strip of land did adjoin a highway which was not a limited access highway and was taken for the purpose of improving said highway. The evidence further shows that the highway adjoining the condemnee's property crosses over a limited access highway (Interstate 75) near her property, and that there are ramps at said crossing for use in entering and leaving said limited access highway.
The charge complained of probably confused and misled the jury, in that it may have impressed upon them that they were authorized to award consequential damages on the theory that the condemnee's land was taken for use as a part of a limited access highway, and that her remaining land would abut a limited access highway, when such was not the case.
The situation is best stated in the ruling of Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 6 ( 76 S.E. 387, AC 1914A 880): "The charges complained of. . . were not warranted by the evidence, and therefore, under the repeated rulings of this court, were erroneous. It is argued that if these charges were erroneous, they were harmless, as the jury only considered the value proved for one purpose, namely, the agricultural value. We have no means of knowing that the jury so limited themselves, and can not say, as a matter of law, that the instructions complained of were harmless. They were probably confusing and misleading to the jury, and require a new trial."
Judgment reversed. Nichols, P. J., and Jordan, J., concur.