Opinion
34373.
DECIDED JANUARY 14, 1953.
Condemnation of land; from Brooks Superior Court. Judge Lilly. September 6, 1952.
William H. Long, for plaintiff in error.
S. Spencer Bennet, J. B. Baum, contra.
1. "Where, on the question of the value of the land taken and the consequential damages to the remainder of the lot, the amount of the verdict is within the range of the estimates of the different witnesses, and the amount is approved by the trial judge, this court will not interfere on the ground that the verdict is excessive" ( Savannah, Augusta Northern Ry. Co. v. Williams, 133 Ga. 679, 66 S.E. 942); and where, upon appeal to the superior court from an award of the assessors in a condemnation proceeding, the jury is authorized to find that the value of 3.4 acres condemned and taken from a tract of 116.5 acres was $3400, or $1000 per acre, that the public housing project would decrease the value of the land adjoining the 3.4 acres by one-third, but one-half of the remaining acreage was waste land, the consequential damages of $5400 are still within the range of the estimates made by the witnesses, and this court will not interfere on the ground that the consequential damages awarded are excessive.
2. Where, in a condemnation proceeding such as is indicated above, the trial court, in its charge to the jury, in substantially the language of the statutes, embodies the principles of law governing consequential damages in condemnation proceedings (Code, §§ 36-504-36-506), the court's failure to charge that the measure of the consequential damages is the diminution in the market value of the remainder of the property proximately resulting from the taking of the tract, is, in view of the charge as a whole and the absence of a timely written request so to charge, not such error as to require the grant of a new trial. See Housing Authority of the City of Dublin v. Curry Realty Co., 86 Ga. App. 527 ( 71 S.E.2d 898).
3. The general grounds of the motion for a new trial, having been neither argued nor generally insisted upon, are treated as abandoned.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED JANUARY 14, 1953.
The Housing Authority of the City of Quitman instituted a proceeding against D. B. McDonald, B. H. Romine, R. W. Hunter, and J. B. Baum to condemn certain land in the City of Quitman as a site for a public housing project. Upon a hearing duly held, the assessors awarded the defendant owners of the property $3400 for the 3.4 acres of land condemned, and $3400 as consequential damages to the land of the defendants adjoining such site. Upon appeal by the Housing Authority from the award of the assessors, a jury in the superior court returned a verdict in which $3400 was awarded for the 3.4 acres condemned, and $5400 was awarded as consequential damages to the defendant's adjoining land.
The Housing Authority's motion for a new trial, based upon the usual general grounds and two special grounds, was overruled and the Housing Authority excepted.
The first of the special grounds complains of the trial court's failure to charge the jury on the measure of consequential damages to the property not condemned, and to define consequential damages; the second special ground complains that the verdict as to consequential damages was so excessive as to show bias and prejudice on the part of the jury.
Those portions of the trial court's charge to the jury which are material to a consideration of the first special ground are as follows: "There are two kinds of damages that are involved in this controversy: one is direct or actual damages. That is damages that result from taking of the quantity of land, three and four-tenths acres, I believe, that the Housing Authority undertakes to seize, take, and use this property for housing purposes, and must pay the owners thereof its fair value, and you shall determine the fair market value from the evidence submitted. The Housing Authority is also liable for any consequential damages that may result by reason of taking the land so described. The statute with reference to the matter is that in estimating the value of the land when taken for public usage, the jury is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated. They shall assess the value of the property taken and used, and the damages done, and they shall also assess the consequential damages to the property not taken, and deduct from such consequential damages any consequential benefits to be derived by the owner from the improvements made. Prospective and consequential damages resulting therefrom may be taken into consideration, if the same are plain and appreciable, but in no case shall the owner be deprived of the actual damages by any such consequential increase in value. In other words, the consequential damages and not from the actual value of the property so taken, but 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. The market value of the property is the price which it will bring when it is offered by one who desires, but who is not obliged to sell, and is bought by one who is under no necessity of buying but desires it. In estimating its value, the capabilities of the property and the use to which it may be applied and to which it has been applied, should 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, its surrounding improvements and capabilities may be shown, and if shown may be considered by the jury in estimating its value. Now, applying these rules you determine from the evidence what the defendants in this case are entitled to, then whether they are entitled to recover any amount is a question of fact for you to determine. You take into consideration, as I have instructed you, all the conditions surrounding the present use of the property, the possibilities and capabilities for other and different usage, and you say whether the property taken, it has been damaged and if so, how much. Then you say whether the entire property has any consequential increase in value or not. If you say the entire property has been increased in value, or will be as a result of this improvement, then you deduct that from whatever consequential damages you find that they may have sustained, and [they] would be entitled to recover the difference between those two amounts, and if the consequential damages are sustained, and there is no increase in value of the property by reason of the improvements, then the defendants would be entitled to recover the full amount of such consequential damages, in addition to the actual amount of the value of the property that is seized and taken."