Opinion
38141.
DECIDED MAY 12, 1960.
Condemnation. Fulton Superior Court. Before Judge Whitman. May 15, 1959.
Brince H. Manning, Jr., Clarence Peeler, Jr., for plaintiff in error.
Harold Sheats, Paul H. Anderson, Martin H. Peabody, contra.
There was no error in the trial court's exclusion of testimony and documents or in its charge to the jury in this condemnation proceeding.
DECIDED MAY 12, 1960.
Fulton County filed a petition for condemnation of property located at 371 Washington Street, Atlanta, Georgia, against the property owner J. O. Bowen, individually and as trustee, and others. Assessors were appointed and an award made. To this award the condemnor appealed to the Superior Court of Fulton County, and $23,400 was awarded by the jury as the reasonable value of the property condemned. The property owner filed a motion for a new trial, which motion was overruled by the superior court and four special grounds were alleged as error.
Special ground 1 was abandoned by the property owner, leaving the other three special grounds for consideration by this court. Special ground 2 assigns as error the refusal of the court to allow the property owner to ask a question on cross-examination relating to testimony which the property owner believed would be relevant to the determination of the reasonable value of the property. Special ground 3 assigns as error the refusal in evidence of certain cards which the property owner believed would be proper evidence to aid the jury in determining the reasonable value of the property, and special ground 4 assigns as error the failure of the court to charge as to whether the jury would be bound by the present zoned status of the property in determining value.
The property owner asserts that it was error for the court to refuse to allow the questioning of one of the professional appraisers placed on the stand by the condemnor, as follows: "For the county purpose for which they have condemned it, how much dirt would you say the county could use, fill dirt, off of this particular lot?" The record shows voluminous testimony of important and essential elements which are necessary for the jury to have before it in determining the reasonable value of real estate for condemnation purposes. Although the value of fill dirt contained on certain property may be relevant and proper as an element in determining the reasonable value of the property, the question is here uncertain in its meaning and any attempted answer would give little or no guiding information to the jury in helping it in arriving at a conclusion as to the reasonable value of the house and lot which were involved in this evaluation. See State Highway Board v. Shierling, 51 Ga. App. 935 ( 181 S.E. 885). It is clear that although some probative value may have been realized by properly going into this "fill dirt" aspect of the matter, its exclusion was not prejudicial or harmful to the property owner in this case. See Hall v. State, 202 Ga. 619, 620 ( 44 S.E.2d 234).
Special ground 3 assigned as error the exclusion of a number of cards that allegedly had been sent out by the property owner to various persons in the vicinity of the property here in question in an effort to determine desirability and feasibility of constructing a filling station and parking lot on the premises. Although a possible use of property in the future may be an element for the jury to consider in determining the reasonable value of the property, the cards attempted to be introduced in evidence did not sufficiently connect the time element or the property involved, and the court properly refused to admit this evidence as it was presented at the time. In any event it is clear that the refusal to admit these cards was not sufficiently prejudicial or harmful to require the grant of a new trial.
Special ground 4 is incomplete as there was no request to charge and the ground does not aver that the issue was material, substantial or vital or that it was not covered in the general charge or raised by the evidence. See Code § 70-207; Cooper v. Nisbet, 19 Ga. 752 (3) ( 47 S.E. 173). Accordingly there is no error which would give the basis for a new trial on any of the grounds alleged as error in this case. Mays v. Fletcher, 137 Ga. 27 ( 72 S.E. 408).
The order of the superior court overruling the special grounds for a new trial is hereby
Affirmed. Felton, C. J., and Nichols, J., concur.