State Highway Department v. Kinsey

206 S.E.2d 835, 131 Ga. App. 770, 1974 Ga. App. LEXIS 1550

• Court: Court of Appeals of Georgia
• Decided: April 23, 1974
• Docket: 48823
• Status: Published

Opinions

Pannell, Judge.

On September 23, 1965, the then State Highway Department of Georgia brought an action to condemn certain land, highway access rights, and a drainage easement against R. C. Kinsey, his wife and the Bank of Dade. Following a jury trial on April 30, 1973, a jury returned a verdict in favor of the condemnees in the amount of $15,000. The court entered a judgment of $11,720, representing the award less the estimated just compensation previously deposited by the condemnor with the court, plus interest since taking. From this judgment the condemnor appeals. Held:

1. Initially, appellant enumerates as error that the trial judge erred in admitting into evidence a deed which was not properly identified and proven as to the execution or registration when it had been stipulated that the condemnees were the owners of the property. The court did not err. The deed introduced and admitted into evidence contained a certificate of recordation by the Clerk of the Superior Court of Dade County, Georgia, and no affidavit of forgery was filed by the condemnor. Code § 29-415; Grannis v. Irvin, 39 Ga. 22, 24. A presumption of genuineness prevails. In the latter part of the enumeration, appellant overlooks the main purpose for the deed’s introduction, i. e., to reflect that the Kinsey property contained 17 acres of land more or less, contra to appellant’s parol evidence to the effect that the property contained 3 acres less when measured from a boundary conflicting with the deed. A question of fact as to the acreage was clearly presented to the jury for determination. The deed was admissible and was of probative value on the issues involved.

2. The appellant contends the trial court erred in charging the jury that it was authorized to include as an element of damages the loss of access rights to the strip taken for the limited access highway when there is no evidence as to the value of such rights. While it is settled law in this state that the condemnor had the burden of proving the value of the property taken or just and adequate compensation therefor including consequential damage, if any (see Ga. Power Co. v. Brooks, 207 Ga. 406 (4) (62 SE2d 183)), this does not preclude or estop the condemnor from complaining of a charge on the ground that the value of the property right sought to be condemned was not proven. See State Highway Dept. v. Murray, 102 Ga. App. 210, 215 (115 SE2d 711). There being no evidence of the value of this alleged property right sought to be condemned, the trial judge erred in charging thereon.

The application of Department of Transportation v. Hardin, 231 Ga. 359 (201 SE2d 441) decided after the present case was pending on appeal, and holding that a condemnee, part of whose land is condemned for a limited-access highway, has no right of ingress to and egress from the limited-access highway from and to the land not condemned, where no old highway is involved and the right of access thereto is condemned, and overruling State Highway Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557), ruling to the contrary, is not raised by any of the enumerations of error, nor could it have been so done as the enumerations of error were required to be filed in the present case prior to this decision.

The Act relating to and creating limited-access highways (Ga. L. 1955, p. 559, § 4) states: "No person shall have any right of ingress to or egress from or passage across any limited-access highway to or from abutting lands except at the designated points to which access may be permitted, and under such arrangements and conditions as may be specified from time to time.” In view of this statute and the ruling in Department of Transportation v. Hardin, supra, no right of access to the limited-access highway exists in the condemnee in this case. While due to the circumstances stated above, no enumeration of error to the charge is based on this ground, we do not deem it inappropriate under the circumstances to say that the State Highway Department (now, Department of Transportation) no longer is required to condemn or pay for, as a separate and additional item of damage, the taking of a non-existent property right, the "right of access” to a limited-access highway, except where an old highway is included therein. The charge complained of was also error for this reason. This concept does not affect the right to consequential damages to the remainder of the condemnee’s lands, . as the court in Department of Transportation v. Hardin, supra, clearly stated: "We do not mean to infer by this opinion that a condemnee would not be entitled to compensation for any reduction in the market value of his remaining property in the event the right of way acquired from the condemnee for a limited access highway divides the condemnee’s property and prevents convenient access from one portion to the other, or cuts off a portion of his property so that he has no access to it. ” (Emphasis supplied.)

Argued January 10, 1974 Decided April 23, 1974 Rehearing denied May 13, 1974

3. Appellant, the State Highway Department, complains that the trial court erred in refusing to permit the appellant to show the size of the drainage culvert under the limited-access roadway and to show that it was designed for the dual purpose of drainage and for a cattle pass. This evidence was objected to by the condemnees on the ground that it was not shown that the condemnee had the legal right to use such culvert or drainage easement as a means to go to and from the remainder of his land on either side of the limited-access highway. That he might use it as a matter of grace, but not of right, is an insufficient basis on which to claim this culvert as a means of passage to and from the separated land of the condemnee and lessens the consequential damages to such remainder of his land. We find no error.

4. The remaining enumerations of efror are clearly without merit.

Judgment reversed.

Bell, C. J., Eberhardt, P. J., Deen, Quillian, Clark and Webb, JJ, concur. Evans, J., dissents. Stolz, J., disqualified. Arthur K. Bolton, Attorney General, Marion O. Gordon, Assistant Attorney General, F. H Boney, Deputy Assistant Attorney General, for appellant. Brown, Harriss & Hartman, Robert J. Harriss, for appellees.