Opinion
40997.
DECIDED NOVEMBER 25, 1964.
Condemnation of land. Cobb Superior Court. Before Judge Henderson.
Grubbs, Prosser Burke, Wm. H. Burke, for plaintiff in error.
Eugene Cook, Attorney General, Richard L. Chambers, Assistant Attorney General, Raymond M. Reed, G. Conley Ingram, contra.
1. Evidence as to comparable sales upon the issue as to value in a condemnation proceeding should generally be restricted to sales of similar property made at or near the time of taking, but whether a sale is within such proximity of the taking as to throw light upon value is a matter addressed to the sound discretion of the trial judge.
(a) Where there is evidence that the properties sold are similar in character and that values in the vicinity of these and condemnee's property have not materially changed since a time prior to the sales, there is no abuse of discretion in admitting the testimony.
2. Where there is a description of condemnee's property and improvements thereon before the court it is not error to permit a witness who is unacquainted with the condemnee's property to testify concerning sales of other properties located nearby in the same subdivision and give descriptions of them and the improvements thereon where the descriptions disclose a similarity with condemnee's property and the witness, admitting his unfamiliarity with the condemnee's property, ventures no opinion as to its value.
3. The estimate of compensation to be paid, as found in a condemnor's declaration of taking, is not, on appeal to a jury, binding on either the condemnor or condemnee; the very issue to be tried on appeal is that of value, and within the range of the evidence the verdict may be equal to, greater or less than the estimate.
DECIDED NOVEMBER 25, 1964.
In this case the condemnor estimated the compensation to be paid as value for the property taken and damages to the remaining property not taken as being $14,625, and paid that amount into the registry of the court. J. D. Otwell, an appraiser, testifying as an expert witness for the condemnor, placed a value on the property taken at $13,700 and damages to the remainder not taken at $200. He conceded that his appraisal of the property was made some 14 months before the taking and that he had not seen it since, but further testified that he was well acquainted with the values of property in the subdivision where the property was located and that values of property there had not materially changed since prior to the time of his appraisal. He also testified that in arriving at his opinion as to value he had taken into consideration sales of comparable properties in the subdivision made within approximately two years prior to the time of the appraisal.
A. D. Little, a realtor testifying as another witness for the condemnor, gave account of sales of two neighboring properties in the same subdivision, having houses thereon of the same type construction which had been built at about the same time as that of the condemnee and by the same builder and which had been sold within a year prior to the taking for $11,800 and $13,000 respectively. He admitted that he had not been in the condemnee's house and that he had not seen it until after it was removed from the lot, and expressed no opinion as to the value of the condemnee's property.
The jury returned a verdict for $14,000 as representing the compensation to be paid for the property taken and consequential damages to the remainder of condemnee's property which was not taken.
In his amended motion for new trial the condemnee excepts to the admission of testimony of the witness Little over the objection that since he admitted that he had never been in condemnee's house and that he did not see it until after it was removed from the lot, he was in no position to testify as to comparable sales and that his testimony was hearsay; and excepts to the amount of the verdict on the ground that it, being in an amount less than the $14,500 estimated as the total damages to be paid in the condemnor's declaration of taking, was as a matter of law illegal.
1. The general grounds of the motion for new trial are without merit. The amount of the verdict was supported by and within the range of the testimony. While evidence as to comparable sales should generally be restricted to sales of similar property made "at or near the time of taking," Flemister v. Central Ga. Power Co., 140 Ga. 511 (6) ( 79 S.E. 148), whether a sale is so within the proximity of the taking as to throw light upon the value of the land taken is addressed to the sound discretion of the trial judge, Aycock v. Fulton County, 95 Ga. App. 541 98 S.E.2d 133; Freedman v. Housing Authority of the City of Atlanta, 108 Ga. App. 418, 421 ( 136 S.E.2d 544); Fulton County v. Elliott, 109 Ga. App. 775, 777 ( 137 S.E.2d 477). We find no abuse of discretion in the admission of sales made some two years prior to the taking since there was evidence that values in the subdivision where the properties sold and condemnee's property were located had not materially changed since prior to the date of the sales testified about. Nor does it matter that this witness's opinion as to value may, in part, rest upon information as to these sales supplied by another. Gulf Refining Co. v. Smith, 164 Ga. 811 (4) ( 139 S.E. 716).
2. There was no error in admitting the testimony of the witness who described the properties that had been sold, giving the type of construction, the approximate date of construction, the areas of the houses and of the lots, and their location in the same subdivision with condemnee's property, etc. A similar description of condemnee's house and lot was before the jury and they could make a determination as to whether the properties were comparable to that of condemnee. Nor does it matter that the witness so testifying had not been in the condemnee's house and had not seen it prior to its removal from the lot, for he expressed no opinion as to the value of condemnee's property. In these circumstances the ruling of Georgia Power Co. v. Livingston, 103 Ga. App. 512 (2) ( 119 S.E.2d 802) has no application.
3. There is no merit in the contention that the verdict is illegal because less in amount than the estimate of compensation to be paid contained in the condemnor's declaration of taking. The figure in the declaration is just what it is declared to be, an "estimate." If the condemnee accepts and there is no appeal, the estimate becomes final. But upon appeal to a jury the very issue to be tried is that of value as to the lands taken and consequential damages as to the portion not taken. State Hwy. Dept. v. Smith, 219 Ga. 800, 808 ( 136 S.E.2d 334). Neither the condemnor nor the condemnee is, upon appeal, bound by any finding of value by assessors or a special master or by any estimate of value by the condemnor in the declaration of taking.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.