State Highway Department v. Moore

Court of Appeals of Georgia

State Highway Department v. Moore

142 S.E.2d 120, 111 Ga. App. 474, 1965 Ga. App. LEXIS 1002

CourtCourt of Appeals of Georgia

DecidedMarch 17, 1965

Docket41094

StatusPublished

Cited by7 cases

This text of 142 S.E.2d 120 (State Highway Department v. Moore) 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

State Highway Department v. Moore, 142 S.E.2d 120, 111 Ga. App. 474, 1965 Ga. App. LEXIS 1002 (Ga. Ct. App. 1965).

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Opinions

Felton, Chief Judge.

In this condemnation case the only question to be decided is whether the court erred in charging the jury that “In estimating the value of land taken for public purposes, it 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,” on the ground that there was no evidence showing the adaptability of the land for any purpose other than agricultural. We think that the exception to the charge is meritorious and that the court erred in giving in charge the foregoing principle. The only evidence that a part of the land could be used for any purpose other than agricultural was that a part of the land was suitable for an approach to an airport for the reason that adjoining land was investigated: for use as an airport, at which time the condemnee asked $1,000 an acre for the land over which would be the approach to the runways of an airport if built, and which was not the condemnee’s best land. The rule in this State is that such a charge is error when there is no evidence that the land involved would be used for any purpose other than that to which it was devoted at the time of the taking or from which the jury could infer any reasonable probability that it was suitable for any other use. Central Ga. Power Co. v. Cornwell, 139 Ga. 1 (76 SE 387, AC 1914A 880); State Hwy. Dept. v. Weldon, 107 Ga. App. 98 (129 SE2d 396); State Hwy. Dept. v. Allen, 108 Ga. App. 388 (133 SE2d 64); State Hwy. Dept. v. Whitehurst, 109 Ga. App. 737 (137 [476]*476SE2d 371); State Hwy. Dept. v. Godwin, 109 Ga. App. 740 (137 SE2d 351). The evidence in this case as to the probability of use of part of the land as an approach to an airport was highly speculative and even if it be conceded that it was suitable for such a use, as almost any land would be, there is no evidence that the investigation showed that the adjoining land to that part considered for an approach was approved or chosen for an airport site or would have been but for this condemnation or notice that it would be instituted. For all we know some other site might have been selected as the more suitable site or a decision against the construction of an airport at this site might have been made. There is no evidence that a part of the eondemnee’s land would probably have been used as an approach to an airport assuming that it was suitable and that its market value had been proved. Nor was there any evidence of value for airport use, save that the condemnee “asked at that time $1,000 per acre,” referring to the time when there was some investigation made. An unaccepted offer to buy at a certain price is not evidence of value, Groover v. Simmons, 161 Ga. 93 (129 SE 778); the asking price of the owner can be no better. Atlantic C. L. R. Co. v. Harris, 1 Ga. App. 667, 669 (57 SE 1030).

The court erred in giving the charge complained of and in overruling the motion for a new trial.

Judgment reversed.

Bell, P. J., Frankum, Jordan, Hall and Eberhardt, JJ., concur. Nichols, P. J., Russell and Pannell, JJ., dissent.

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Felton, Chief Judge.

In this condemnation case the only question to be decided is whether the court erred in charging the jury that “In estimating the value of land taken for public purposes, it 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,” on the ground that there was no evidence showing the adaptability of the land for any purpose other than agricultural. We think that the exception to the charge is meritorious and that the court erred in giving in charge the foregoing principle. The only evidence that a part of the land could be used for any purpose other than agricultural was that a part of the land was suitable for an approach to an airport for the reason that adjoining land was investigated: for use as an airport, at which time the condemnee asked $1,000 an acre for the land over which would be the approach to the runways of an airport if built, and which was not the condemnee’s best land. The rule in this State is that such a charge is error when there is no evidence that the land involved would be used for any purpose other than that to which it was devoted at the time of the taking or from which the jury could infer any reasonable probability that it was suitable for any other use. Central Ga. Power Co. v. Cornwell, 139 Ga. 1 (76 SE 387, AC 1914A 880); State Hwy. Dept. v. Weldon, 107 Ga. App. 98 (129 SE2d 396); State Hwy. Dept. v. Allen, 108 Ga. App. 388 (133 SE2d 64); State Hwy. Dept. v. Whitehurst, 109 Ga. App. 737 (137 [476]*476SE2d 371); State Hwy. Dept. v. Godwin, 109 Ga. App. 740 (137 SE2d 351). The evidence in this case as to the probability of use of part of the land as an approach to an airport was highly speculative and even if it be conceded that it was suitable for such a use, as almost any land would be, there is no evidence that the investigation showed that the adjoining land to that part considered for an approach was approved or chosen for an airport site or would have been but for this condemnation or notice that it would be instituted. For all we know some other site might have been selected as the more suitable site or a decision against the construction of an airport at this site might have been made. There is no evidence that a part of the eondemnee’s land would probably have been used as an approach to an airport assuming that it was suitable and that its market value had been proved. Nor was there any evidence of value for airport use, save that the condemnee “asked at that time $1,000 per acre,” referring to the time when there was some investigation made. An unaccepted offer to buy at a certain price is not evidence of value, Groover v. Simmons, 161 Ga. 93 (129 SE 778); the asking price of the owner can be no better. Atlantic C. L. R. Co. v. Harris, 1 Ga. App. 667, 669 (57 SE 1030).

The court erred in giving the charge complained of and in overruling the motion for a new trial.

Judgment reversed.

Bell, P. J., Frankum, Jordan, Hall and Eberhardt, JJ., concur. Nichols, P. J., Russell and Pannell, JJ., dissent.

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142 S.E.2d 120, 111 Ga. App. 474, 1965 Ga. App. LEXIS 1002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-highway-department-v-moore-gactapp-1965.

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