State Highway Department v. Casey

Full title: STATE HIGHWAY DEPARTMENT v. CASEY

Court: Court of Appeals of Georgia

Date published: Dec 3, 1970

123 Ga. App. 70 (Ga. Ct. App. 1970)

179 S.E.2d 541

Opinion

45776.

SUBMITTED NOVEMBER 9, 1970.

DECIDED DECEMBER 3, 1970.

Condemnation of land. Camden Superior Court. Before Judge Ballenger.

Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Richard L. Chambers, Assistant Attorney General, Robert E. Sherrell, Deputy Assistant Attorney General, Robert W. Harrison, Jr., for appellant.

QUILLIAN, Judge.

The State Highway Department condemned a riverfront lot in Camden County which abutted upon the Saint Marys River and was owned by Edison Casey. This was a total acquisition of a rectangular shaped lot which contained 1.039 acres with adjacent property owners on three sides and the Saint Marys River on the other.

The jury returned a verdict of $6,790. The condemnor appealed and the case is here for review. Held:

1. The appellant contends the following charge was error: "I charge you that the word `value' as used in the law relating to eminent domain or condemnation in Georgia is a relative term depending on the circumstances; thus, under some circumstances, the value might be the actual value, the market value, the saleable value, the reasonable value or the cash value. You may use either of these in determining the actual value of the property taken. Now, while market value is the general yardstick in a condemnation proceeding, there may be circumstances in which market value and actual value are not the same, and in such event, the jury may consider the actual value of the property therein appropriated." The instruction was erroneous because there was no evidence that the land taken had a peculiar value apart from its market value. City of Gainesville v. Chambers, 118 Ga. App. 25 ( 162 S.E.2d 460); Ga. Power Co. v. Pittman, 92 Ga. App. 673 ( 89 S.E.2d 577); State Hwy. Dept. v. Ball, 112 Ga. App. 480 ( 145 S.E.2d 577).

2. Error is assigned on the trial judge's refusal to give a requested instruction that the jury should not be concerned with the willingness or unwillingness of the owner to part with his property. It was error not to instruct the jury in this regard. Central Ga. Power Co. v. Mays, 137 Ga. 120 (2) ( 72 S.E. 900).

Judgment reversed. Bell, C. J., and Whitman, J., concur.

QUILLIAN, Judge.

SUBMITTED NOVEMBER 9, 1970 — DECIDED DECEMBER 3, 1970.