State Highway Department v. Musgrove

Court of Appeals of Georgia

State Highway Department v. Musgrove

146 S.E.2d 550, 112 Ga. App. 801, 1965 Ga. App. LEXIS 837

CourtCourt of Appeals of Georgia

DecidedNovember 30, 1965

Docket41477

StatusPublished

Cited by4 cases

This text of 146 S.E.2d 550 (State Highway Department v. Musgrove) 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. Musgrove, 146 S.E.2d 550, 112 Ga. App. 801, 1965 Ga. App. LEXIS 837 (Ga. Ct. App. 1965).

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Opinions

Pannell, Judge.

1. Under the authority of headnote 1 of State Hwy. Dept. v. Rutland, ante, the charges complained of in ground 4 of the motion for new trial were error..

2. It is not necessary, in view of the reversal under Division 1, that this court pass upon the alleged error in charging that the jury should find a fair and reasonable value of the property taken rather than market value. State Highway Department v. Rutland, 112 Ga. App. ante, headnote 2.

3. At the beginning of the brief of evidence appears to be a stipulation entered into at a pre-trial conference or at least prior to the introduction of testimony in the case which contains this stipulation: “That the issues for the jury are just and adequate compensation for the property taken and consequential damages or benefit to the remaining property.” After the testimony of witnesses the last thing that appears in the brief of evidence is the following: “The Court: It is [802]*802agreed and stipulated that there were no damages or benefits to the remaining property not taken. The only thing to be considered by the jury is the actual value of the property with the improvements thereon actually taken.” As this last stipulation in the brief of evidence appears to have been entered into after the evidence was in, we consider it the controlling stipulation as shown by the record. Under these circumstances, this latter stipulation is controlling over any statements to the contrary in the motion for new trial. See Watkins Co. v. Seawright, 40 Ga. App. 314 (4) (149 SE 389). It follows, therefore, that assignments of error based upon the failure of the trial court to charge the jury on the mechanics of measuring consequential damages was not error.

4. The trial court, in charging the jury generally on the right of the State to condemn, stated: “. . . the State cannot so take and use the property of any person in this State without compensating the owner for any damages, direct or consequential, that result from the taking and using of the property.” And thereafter stated: “Now, there is only one damage that is involved in this controversy, that is, direct or actual, damages, that is, damages that result from taking of a quantity of land, and I believe it is 5% acres, approximately, or whatever it may be as shown by the evidence. The State undertakes to seize and take and use for road purposes this 5% acres of land of the McDermids. The State must pay them for that land its fair and reasonable value, and you determine what the fair and reasonable value is from the evidence submitted you.” We see no conflict in the two charges, as contended in the assignments of error, as the trial court expressly limited the case to the direct or actual damages. Whether this charge is error for any other reason is not presented for decision by the assignments of error in this particular ground of the motion for new trial.

5. Evidence offered by the condemnor as to the sale by the condemnee to the condemnor for use as a borrow pit of a part of the tract from which the condemned tract was taken is not admissible in evidence either to show (1) consequential benefits to the land not taken, or (2) the value of the land taken; this for the reason the evidence of such a sale is not evidence of market value. See Georgia Power Co. v. Brooks, 207 Ga. 406, 409 (2) (62 SE2d 183); followed in Garden Parks, Inc. v. Fulton County, 88 Ga. App. 97 (2) (76 SE2d [803]*80331). State Hwy. Board v. Shierling, 51 Ga. App. 935 (1) (181 SE 885), where it was held that evidence of value for borrow pit purposes of land condemned for such purposes was admissible, is not controlling or applicable here. The trial court did not err in excluding such evidence upon objections made.

Submitted September 9, 1965 Decided November 30, 1965. Arthur K. Bolton, Attorney General, Richard L. Chambers, E. J. Summer our, Assistant Attorneys General, S. B. BcCall, J. Lundie Smith, Asa D. Kelley, Jr., Deputy Assistant Attorneys General, for plaintiff in error.

6. The evidence was sufficient to authorize the amount found by the jury. The jury are not confined to the testimony of any one witness in arriving at their verdict but may take various estimates of value of different items, making up the whole, from different witnesses.

Judgment reversed.

Felton, C. J., Bell, P. J., Frankum, Jordan, Hall, Eberhardt, and Deen, JJ., concur. Nichols, P. J., and Pannell, J., dissent.

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Pannell, Judge.

1. Under the authority of headnote 1 of State Hwy. Dept. v. Rutland, ante, the charges complained of in ground 4 of the motion for new trial were error..

2. It is not necessary, in view of the reversal under Division 1, that this court pass upon the alleged error in charging that the jury should find a fair and reasonable value of the property taken rather than market value. State Highway Department v. Rutland, 112 Ga. App. ante, headnote 2.

3. At the beginning of the brief of evidence appears to be a stipulation entered into at a pre-trial conference or at least prior to the introduction of testimony in the case which contains this stipulation: “That the issues for the jury are just and adequate compensation for the property taken and consequential damages or benefit to the remaining property.” After the testimony of witnesses the last thing that appears in the brief of evidence is the following: “The Court: It is [802]*802agreed and stipulated that there were no damages or benefits to the remaining property not taken. The only thing to be considered by the jury is the actual value of the property with the improvements thereon actually taken.” As this last stipulation in the brief of evidence appears to have been entered into after the evidence was in, we consider it the controlling stipulation as shown by the record. Under these circumstances, this latter stipulation is controlling over any statements to the contrary in the motion for new trial. See Watkins Co. v. Seawright, 40 Ga. App. 314 (4) (149 SE 389). It follows, therefore, that assignments of error based upon the failure of the trial court to charge the jury on the mechanics of measuring consequential damages was not error.

4. The trial court, in charging the jury generally on the right of the State to condemn, stated: “. . . the State cannot so take and use the property of any person in this State without compensating the owner for any damages, direct or consequential, that result from the taking and using of the property.” And thereafter stated: “Now, there is only one damage that is involved in this controversy, that is, direct or actual, damages, that is, damages that result from taking of a quantity of land, and I believe it is 5% acres, approximately, or whatever it may be as shown by the evidence. The State undertakes to seize and take and use for road purposes this 5% acres of land of the McDermids. The State must pay them for that land its fair and reasonable value, and you determine what the fair and reasonable value is from the evidence submitted you.” We see no conflict in the two charges, as contended in the assignments of error, as the trial court expressly limited the case to the direct or actual damages. Whether this charge is error for any other reason is not presented for decision by the assignments of error in this particular ground of the motion for new trial.

5. Evidence offered by the condemnor as to the sale by the condemnee to the condemnor for use as a borrow pit of a part of the tract from which the condemned tract was taken is not admissible in evidence either to show (1) consequential benefits to the land not taken, or (2) the value of the land taken; this for the reason the evidence of such a sale is not evidence of market value. See Georgia Power Co. v. Brooks, 207 Ga. 406, 409 (2) (62 SE2d 183); followed in Garden Parks, Inc. v. Fulton County, 88 Ga. App. 97 (2) (76 SE2d [803]*80331). State Hwy. Board v. Shierling, 51 Ga. App. 935 (1) (181 SE 885), where it was held that evidence of value for borrow pit purposes of land condemned for such purposes was admissible, is not controlling or applicable here. The trial court did not err in excluding such evidence upon objections made.

Submitted September 9, 1965 Decided November 30, 1965. Arthur K. Bolton, Attorney General, Richard L. Chambers, E. J. Summer our, Assistant Attorneys General, S. B. BcCall, J. Lundie Smith, Asa D. Kelley, Jr., Deputy Assistant Attorneys General, for plaintiff in error.

6. The evidence was sufficient to authorize the amount found by the jury. The jury are not confined to the testimony of any one witness in arriving at their verdict but may take various estimates of value of different items, making up the whole, from different witnesses.

Judgment reversed.

Felton, C. J., Bell, P. J., Frankum, Jordan, Hall, Eberhardt, and Deen, JJ., concur. Nichols, P. J., and Pannell, J., dissent.

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146 S.E.2d 550, 112 Ga. App. 801, 1965 Ga. App. LEXIS 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-highway-department-v-musgrove-gactapp-1965.

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