Fulton County v. Bailey , 107 Ga. App. 512 ( 1963 )

Frankum, Judge.

1. One of the reasons given by the witness for stating that the owner of the land had been damaged only to the extent of $3,800, was because the remaining portion of the $11,500 represented the damages to the lessee of the property. This reason, howéver, was not sufficient to authorize a finding for the owner in an amount less than the value of the property taken, as shown by the evidence, because the lease of the property in question shows that it was executed in contemplation of the “proposed future widening of the west side of any part of Piedmont Road up to and not to exceed twenty feet,” and by its express terms, the lessee renounced interest in any award for damages on account thereof. The record shows that the strip of land condemned was only 15.2 feet in width at its widest point.

2. It is contended that this witness also testified that, notwithstanding the lease on the premises, the net damage to the owner on account of the taking was $3,800. The testimony which is the basis for this contention was as follows: “It is my opinion, I am not quoting it from a legal standpoint, I am quoting it from a market standpoint, she will have no loss, she can sell the property for the same but all the time this lease is going on. Q. And the county should, instead of paying the fair market price for the piece of property, instead of $11,500 should only pay $3,800 because of those circumstances, is that right? A. I am not trying to say what the county should pay. They can pay whatever the jury says. I am trying to say what her damage is, in my opinion, based on the market for the property, based on the service station, based on the lease, that her damage is $3,800. Q. You say that this property would sell for as much after you cut off 15 front feet as it would have sold if it had not been cut off? A. In my opinion, yes, sir. The reason I say that is because this is a benefit to the service station, it makes the service station more useable I believe, so the service station property actually helps it.” This witness also testified that, in his opinion, the market value of the property before the taking was $126,850, and that the market value of the remaining property after the taking would still be the same.

The proper construction of this testimony is that the witness was offsetting against the value of the property taken the excess of consequential benefits over the consequential damages to the remaining property. This cannot be done. Code §§ 36-504, 36-506.

3. While the condemnor cites cases to the effect that a jury is not bound by witnesses’ opinions as to value, this does not mean that they can determine value on their own personal knowledge. Code § 110-108. Gibson, v. Carreker, 91 Ga. 617 (17 SE 965); State Hwy. Dept. v. Andrus, 212 Ga. 737 (95 SE2d 781), s.c. 93 Ga. App. 827 (93 SE2d 174). To so rule would allow a jury to abandon the evidence to reach its own approximation of value. See Stephens v. Southern Discount Co., 105 Ga. App. 667 (125 SE2d 235). The rule simply means that the jury is not bound to render a verdict in an amount testified to by witnesses when there is sufficient “data in the evidence upon which the jury may legitimately exercise their ‘own knowledge and ideas’.” Jefferson v. Kennedy, 41 Ga. App. 672 (3) (154 SE 378). Cf. Sammons v. Copeland, 85 Ga. App. 318 (69 SE2d 617); Chalker v. Raley, 73 Ga. App. 415 (37 SE2d 160). See State Hwy. Dept. v. Andrus, 212 Ga. 737, supra.

No evidence is shown which would have authorized the jury to find a verdict in an amount different from the amount directed in this case. The court did not err in directing the verdict for Mrs. Bailey, the owner of the property.

Judgment affirmed.

Felton, C. J., Carlisle, P. J., Nichols, P. J,. Hall and Eberhardt, JJ., concur. Bell, Jordan and Russell, JJ., dissent.