Department of Transportation v. Gunnels

334 S.E.2d 197, 175 Ga. App. 632, 1985 Ga. App. LEXIS 2812
CourtCourt of Appeals of Georgia
DecidedJuly 15, 1985
Docket70045
StatusPublished
Cited by26 cases

This text of 334 S.E.2d 197 (Department of Transportation v. Gunnels) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Transportation v. Gunnels, 334 S.E.2d 197, 175 Ga. App. 632, 1985 Ga. App. LEXIS 2812 (Ga. Ct. App. 1985).

Opinions

Birdsong, Presiding Judge.

Condemnation — Charge on Damages. Appellant-condemnor Department of Transportation (DOT) filed a declaration of taking as to a strip of land from a parcel belonging to appellee-condemnee, Gunnels. DOT contemporaneously paid into the registry of the court the amount of $1,265. Gunnels was dissatisfied with the amount of estimated compensation deposited. Accordingly, he filed a notice of appeal. The issues of the value of the strip taken and of the consequential damages to the remainder were tried before a jury. The jury returned a verdict for appellee in the amount of $13,000. DOT’s motion for new trial was denied and it appeals enumerating five alleged errors. Held:

1. There are two elements of just and adequate compensation for a partial taking of property by condemnation: (1) the market value of the portion actually taken; and (2) the consequential damage, if any, to the remainder. In order to determine the total damages, a jury is required to follow a five-step procedure: (1) determine the fair market value of the entire tract of property before any part is taken; (2) the value of the partial portion taken considered as a part of the whole tract; (3) the value of the remaining tract but just before the taking; 1. e., the value of the remainder as a part of the whole by subtracting the value of a part taken from the value of the entire property; (4) the market value of the remainder just after the taking, considering the negative impact of the separation of the part from the whole; and (5) the positive impact of the taking of the part upon the value of the remainder just after the taking. Obviously steps 4 and 5 dealing with consequential damages must be determined separately from steps 1, 2, and 3 inasmuch as actual value is determined separately from consequential damages which may be added to but cannot be deducted from the value of the part taken.

The trial court in the instant case gave the following jury instruction as to the measure of compensation for the first element: “[T]he measure of damages for the part of the lot actually taken by [DOT] is the difference between the market value of the whole lot just before the taking and the market value of the whole lot immediately after the taking. Now, that’s the measure of damages for the part that was actually taken.” DOT asserts that this charge as to the measure of compensation for the first element erroneously allows a condemnee in a partial taking to recover the same amount as consequential damages, the second element, and thus twice.

As noted above, in a partial taking condemnation proceeding, the first element of compensation is the market value of the property actually taken. To arrive at the amount of compensation for the part [633]*633actually taken, the contested charge instructed the jury to determine the difference between the market value of the “whole lot” immediately before and after the taking of a part thereof.

The contested charge is based upon language which appears in State Hwy. Bd. v. Bridges, 60 Ga. App. 240, 241 (2) (3 SE2d 907). In Elliott v. Fulton County, 220 Ga. 377, 381 (139 SE2d 312), our Supreme Court determined that Bridges enunciated “a correct rule.” The Bridges case, supra, in discussing a workable rule concerning the value element held the measure of damages for the part actually taken (not consequential damages to the remaider) was to determine the difference between the market value of the whole lot just before the taking and the market value of the whole lot immediately after the taking. Inasmuch as the “whole” lot after the taking cannot include that which has been separated, the words “whole lot” after taking must mean the whole of the remainder, not considering consequential damages.

In Elliott v. Fulton County, supra, the Supreme Court was considering the charge as to value given in that case (Elliott) as compared with the charge as to value in the Bridges case. The Supreme Court clearly differentiated the value determination for the part taken from the consequential damages and concluded that as to the charge dealing with the value of the part taken, the Bridges charge was correct and could have been applied correctly in the Elliott case. This dichotomy in the Elliott case was recognized and applied in Wright v. MARTA, 248 Ga. 372 (283 SE2d 466). The Supreme Court in Wright criticized a charge on consequential damage in Wright which was based upon obiter dicta in the Bridges charge dealing with consequential damages that authorized the jury to determine consequential damage to the remainder of the property by comparing the difference between the market value of the remainder before any part is taken (and before improvements) with the market value of the remainder after separation but after improvements are made. Consequential damages are limited to those that occur as a result of and at the time of the taking and before improvements are made. In Wright, supra, the Supreme Court separated that part of the Elliott case dealing with the value charge from and expressly overruled the obiter dicta pertaining to the charge on consequential damages while declining to consider and thus declining inferentially to overrule the test set forth in Bridges for the determination of value of the parcel taken (fn. 9, p. 376). Therefore, still extant and binding as authority upon us is the approval of the value charge in Bridges by the Elliott opinion.

In the Elliott opinion (p. 379), it was pointed out correctly that the removal and isolated consideration of a brief excerpt of a charge can do an injustice to the meaning and clarity of the excerpt when [634]*634considered in isolation and not in the context of the entire charge on that subject; citing numerous authorities in support. In this case the trial court, not once but twice, informed the jury that the measure of damages for the taking of the part less than the whole was represented by the fair market value of the property interest taken at the time of the actual taking and more specifically being the difference between the market value of the whole lot just before the taking and the market value of the whole lot immediately after the taking (which we conclude can mean only the whole remainder inasmuch as the “whole lot after the taking” perforce cannot include something that is no longer present). Thus taken in context, the charge in this case as to value still represents the correct rule in this or any condemnation case. Wright, supra; Bridges, supra.

While the language of Bridges setting forth the proper criteria for determining value of the property taken in condemnation may be in-artful, this court can do no more than point out the inexactness of the language and its potential for confusion. We have neither the right nor power to disapprove a holding in a case that on the very point involved expressly has been approved by our Supreme Court in Elliott v. Fulton County, supra. See State Hwy. Dept. v. Thompson, 112 Ga. App. 488 (145 SE2d 784).

2. While that portion of the charge in this case that allows the jury to establish consequential damages upon a fair market value determined after improvements have been made is erroneous as pointed out in the Wright case, the error is actually beneficial to the appellant, DOT, and furnishes no ground for reversal of this case. See Pilkenton v. Eubanks,

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Bluebook (online)
334 S.E.2d 197, 175 Ga. App. 632, 1985 Ga. App. LEXIS 2812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-gunnels-gactapp-1985.