Opinion
40839.
DECIDED OCTOBER 1, 1964.
Condemnation of land. Talbot Superior Court. Before Judge Thompson.
Eugene Cook, Attorney General, Richard L. Chambers, Horace E. Campbell, Jr., Assistant Attorneys General. John A. Smith, for plaintiff in error.
George Richard Jacob, contra.
1. In the trial of an appeal from a special master's finding of the value of real property sought to be condemned, the admission of evidence as to the amount of damages to personal property damaged in connection with the construction of improvements over the real property taken was error.
2. Evidence of the difference between the value of the whole property (that taken and that not taken), before the taking and after the taking is without probative value as to the actual value of the land taken and the consequential damage to that not taken. With this kind of evidence eliminated, the valid evidence as to the value of the land actually taken and the consequential damage to that not taken did not authorize the verdict found by the jury of $11,000, which also included unrecoverable damages to personal property.
DECIDED OCTOBER 1, 1964.
This was a condemnation proceeding brought under the provisions of the Act of 1957 (Ga. L. 1957, p. 387; Code Ch. 36-6A) by the State Highway Department for the purpose of acquiring a highway right of way through the property of Perry Mann and Mrs. Julia Boswell Mann. The condemnor filed an appeal from the award of the special master in the Superior Court of Talbot County. The jury returned a verdict of $11,000 for the condemnees. The condemnor's motion for a new trial as amended was denied, to which judgment it excepts.
1. This proceeding was to condemn an interest in real property. The only questions before the special master concerning the value of property sought to be condemned were (1) the value of the land to be taken and the consequential damage to the remaining land (not taken). On appeal the issues were the same and under present provisions of the law no question of damage to personal property was at issue and the court erred in admitting evidence that the damage to personal property done in connection with the building of public improvements, for which the land was taken, was $2,300. It would seem that the remedy of the condemnee for damage to personal property is an action under the constitutional provision for damages to property or a suit in equity to settle all issues in one action to avoid a multiplicity of suits. We know of no law permitting the recovery of damages to personalty as such on appeal of a finding by the special master fixing value of real property alone. The fact that the appeal was tried at a time when the damage to personal property had become ascertainable does not alter the fact that there is no provision of law for claiming damages to personalty in such a proceeding. McArthur v. State Hwy. Dept., 85 Ga. App. 500 ( 69 S.E.2d 781).
2. The verdict of the jury was excessive because the only legal evidence as to the value of the land taken and consequential damages to the remainder showed a maximum of $2,512.60. The jury found $11,000 for all damages, including that to personal property. The only evidence presented by the condemnee, insofar as the real property was concerned, was the evidence as to the value of the whole tract, including the land taken, before the taking, and the value of the whole tract after the taking. Such evidence has no probative value as to the actual value of the land taken and the consequential damage to the land not taken. State Hwy. Dept. v. Weldon, 107 Ga. App. 98 ( 129 S.E.2d 396).
The court erred in overruling the motion for a new trial.
Judgment reversed. Frankum and Pannell, JJ., concur.