Central Georgia Power Co. v. Stone , 1913 Ga. LEXIS 451 ( 1913 )

Lumpkin, J.

The Central Georgia Power Company proceeded to condemn certain land belonging to Mrs. B. J. Stone, for the purpose of flooding the same in connection with its power-plant for the generating of electricity by water. From the award of the assessors an appeal was entered by the landowner. The jury found in her favor $2,953.53. The condemner moved for a new trial, which was denied, and it excepted.

1-4. The first four headnotes are self-explanatory.

5. Two witnesses were sworn as experts. One of them stated that, in his opinion, the market value of the landowner’s waterpower capable of being developed, taking into consideration the fall, the volume, and the speed of the stream, and that she owned a half interest, that is to the thread of the stream, was $2,500. The other testified that, in his opinion, taking into consideration that the property to be taken would be covered by water from ten to twenty feet deep> and considering its inadaptability for water-power or reservoir purposes, it was worth $175 to $225 per acre. On cross-examination of these witnesses, it appeared that the Ocmulgee river ran along the land to be taken for some little distance, and in that space had a fall of a foot and a half, and that no dam could be built at that point, and no water-power developed there. The basis on which they formed their estimates of value was, in effect, that a dam could be built several miles further down the stream, at a point where the condemner’s dam was located; that an estimated number of horse-power could be there developed, which ought to be worth a certain sum per horse-power; that, considering the quantity of water which ran by the property of the owner, and the fall of a foot and a half, this would produce a given horsepower, and hence its proportion of the entire horse-power produced at the dam would be a stated per cent, or fraction; and, therefore, the value of the water-power on the land could be estimated. One of the witnesses went more into details than the other, and gave estimates of the cost of the dam, machinery, operation, etc., including even a bond issue and an allowance for the promoters of the enterprise. Objection was made to the estimates of value founded on such, a basis, and a motion to rule them out was 'also made. Both were overruled. This was error. In condemnation proceedings, as to land taken, the question is, what is its market value? The market value is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so. In determining what this market value is, the jury are not confined to considering the use to which it is actually being put by the owner. He may have used a valuable corner for a stable or for a pigsty. But he is not obliged to have it priced on that basis. The character, location, size, and shape of the property, and its.'availability for different uses may be shown. A corner lot in a town may be proved to be adapted to use as a garden, or as a location for a residence, or for a site for a store or office building. This may not only increase the number of probable buyers, -but also the probable price which a buyer would pay for it. If it were proved that the lot had a coal or iron deposit under the surface, this would be for consideration in estimating the market value. And so of other possible elements, such as suitability for a bridge-site or a dam or reservoir. These would not furnish separate items for recovery, but would be legitimate for consideration in estimating market value. Harrison v. Young, 9 Ga. 359; Central Georgia Power Company v. Mays, 137 Ga. 120 (72 S. E. 900), and citations. But this is an entirely different thing from undertaking to prove that the eondemner can spend so much money in improvements, or in a business to be established on the land, and can make an estimated profit, and estimating the market value on the basis of prorating the contribution of the landowner to the total result. To enter into the possibilities of profitable or unprofitable investments, or success or failure of a business enterprise, would be to lose sight of the main issue and become entangled in a maze of collateral questions. The owner who would like to show the possible profits of the eondemner, as a means of increasing the estimate of the market value of the land taken, would hardly be willing to have the market value decreased by showing that the enterprise involved large risks and might not be profitable for 'a long time, if at all, and that, the owner of the land taken should share the possible losses as well as the probable profits. Selma, Rome & Dalton R. Co. v. Keith, 53 Ga. 178; Tidewater Canal Co. v. Archer, 9 Gill. & John. (Md.) 479; West Va. etc. R. Co. v. Gibson, 94 Ky. 234 (21 S. W. 1055); Gardner v. Inhabitants of Brookline, 127 Mass. 358. Rightly construed in connection with the facts there involved, the decision in Boom Co. v. Patterson, 98 U. S. 403 (25 L. ed. 206), does not conflict with what is here said, but accords therewith. Estimates of value shown to rest wholly or chiefly on such improper bases are not admissible in evidence.

Counsel for defendant in error, the owner of the land, cited San Diego Land &c. Co. v. Neale, 88 Cal. 50 (11 L. R. A. 604, 25 Pac. 977). But a careful reading of that decision will show that it undertakes to lay down substantially the doctrine above announced and to explain a former ruling which had been thought to express a contrary view. An excerpt from the opinion will suffice to show this: “The following' authorities establish the proposition that the 'compensation to be awarded the owner of the land condemned can not be based upon the value of the property to the person or company in charge of the public use, nor by its necessities, and that it is not proper to take into consideration the profits which may result from the use of the land, especially where the profits depend upon the expenditure of large sums of money in carrying out the contemplated enterprise: Canal Co. v. Archer, 9 Gill. & J. 481; Gardner v. Inhabitants of Brookline, 127 Mass. 358; Burt v. Wigglesworth, 117 Mass. 302; Railroad Co. v. Balthasar [126 Pa. 1], 17 Atl. Rep. 518; Dorlan v. Railroad Co., 46 Pa. St. 520; Railroad Co. v. Galgiani, 49 Cal. 139. Appellants contend that the court did not err in refusing to strike out the testimony objected to, because the witnesses were competent to express an opinion as to value, and the reasons for such opinion can only affect the weight to be given to their testimony; but we think that where a witness bases his opinion entirely upon incompetent and inadmissible matters, or shows thát such matters are the chief elements in the calculations which lead him to such conclusions, it should be rejected altogether."

If it were sought to prove such facts for the consideration of the jury, the evidence would be rejected. If a hypothetical question were framed with such facts as a basis for an opinion 'as to value, the question would be ruled out on objection, because such facts would be illegal and inadmissible. So when the witness shows that his opinion of value is founded on such illegal facts, the opinion is inadmissible.

It was urged that if the admission of this evidence and the refusal to rule it out constituted error, it was harmless, .as other witnesses put a higher value on the property than the jury found. The jury were not bound to accept the estimates of those other witnesses, and it is impossible to say how far the finding may have been influenced by this improper evidence.

6. Certain charges to which exception was taken were not accurate. The erroneous view which caused the refusal to' rule out the evidence discussed above seems to have infected the charge. The court charged¿ .“If by reason of its surroundings, or its natural advantages, or its artificial improvements, or its intrinsic character, it is peculiarly adapted to some particular use, and the circumstances which make up this adaptability have been shown, you may take such conditions into consideration in estimating its market value.” It is. not clear to what the court referred as “its artificial improvements,” or by the phrase, “and the circumstances which make up this adaptability have been shown,” unless he referred to the building of the eondenmer’s dam and works, and the facts stated by the two experts. At least, with that evidence admitted, the jury might have so understood.

Again, he charged that the jury might take into consideration “the intrinsic, potential value, if any such appears, for the storage óf water for a water-plant by the plaintiff or any other person.” Again, he referred to the “potential value for the storage of water, . whether that was dependent upon the property alone, or dependent in connection with property owned by others or dependent on improvements contemplated or being made by the plaintiff in this case.” And he further charged that if certain improvements were being made in the locality where the property was situated, and the fact of these improvements showed the adaptability of this property for valuable uses, and this fact enhanced the market value of the property, the owner would be entitled to such market value as affected by these improvements, “though such improvements were at the time being made by the plaintiff in this case.” This also was apparently based on the inadmissible evidence of the experts. Moreover, the' court seems to charge that if the condemner had started its dam, it must pay more for the property. In 15 Cye. 757, it is said: “Compensation must be reckoned from the standpoint of what the landowner loses by having his property taken, not by the benefit which the property may be to the other party to the proceedings; therefore the value of a particular piece of land to a person or corporation exercising the right of eminent domain, or the necessities of that particular person or corporation to acquire that piece of property for the particular purpose, can not be considered as an element of damage to the landowner. There is a recognized difference between estimating damages by 'the value of the property to the person or corporation exercising the right of condemnation and considering the availability or adaptability of a piece of land for the purpose for which it is condemned as an element of value which would attract any buyer for that purpose. The true rule is that any use for which the property is capable may be considered; and if the land has an adaptability for the purposes for which it is taken, the owner may have this considered in the estimate, as well as any other use of which it is capable. Thus, in proceedings to condemn land for railroad purposes, for a bridge site, or for a reservoir or water-supply, it may be shown that the land has an especial availability which would render it valuable to any one who might wish to purchase it for railroad purposes, for a bridge site, or for the purpose of a reservoir or water-supply, and the owner may insist upon tins availability of his land for the particular purpose as an element in estimating its value. This special adaptability for the purpose for which the land is taken can not be made the sole basis of estimate, especially where the property possesses other capabilities; for it is the general value of the land in view of all its elements that is to be estimated.” See also 2 Lewis Em. Dom. (3d ed.) §§ 706, 707.

Judgment reversed.

Beck, J., absent. The other Justices concur.