State Highway Department v. Thompson , 112 Ga. App. 488 ( 1965 )

Deen, Judge.

In this condemnation case the State Highway Department took 6.944 acres of land from a 75-acre tract, splitting the tract of land and depriving a part of it of its former road access. The assignments of error are directed to the italicized portion of the following instructions: “There are two kinds of damages involved in this case. One is direct or actual damages, and that is damages that result directly from the taking of the defendant’s land. The State has taken the defendant’s land for use as a road, and the State must pay him for that land the fair market value thereof at the time of the taking. The measure of damages for the part, of the defendant’s land actually taken is the difference between the market value of the whole tract just before the taking and immediately after the taking of the same by the State. The other kind of damages that you are concerned with is what the law denotes as consequential damages, if you find the defendant has sustained such damages to the remaining lands not taken that may result from the taking of that portion of the defendant’s land taken by the State and the locating of the road upon it. I charge you that the measure of damages to be used by you in determining consequential damages, if any, is the diminution or lessening in the market value of the remainder of the defendant’s property, proximately arising from the taking of the part taken, and the devoting of it to the purposes for which it was condemned in the usual and ordinary way. And this is determined, where there are either or both benefits and damages, by taking the difference between the greater market value of the land not taken before the land condemned is taken off, and deducting therefrom the market value of this remainder after land is taken off and improvement made.”

The portions of the charge objected to are taken from State Highway Board v. Bridges, 60 Ga. App. 240 (2) (3 SE2d 907) as follows: “We think the most satisfactory rule for determining damages in a case such as this, and the one which would probably be most easily understood by the jury, would be to charge, first, .that the measure of damages for the part of the lot actually taken by the highway department is the difference between the ‘market value’ of the whole lot just before the taking and the ‘market value’ of the whole lot immediately after the taking; and second, that the measure of consequential damages, if any, for the part of the lot not taken, where there are either benefits or damages involved, or both, is the difference between the greatest ‘market value’ of the land not taken before the strip is taken off and the improvements (benefits) made, less the ‘market value’ of the remainder of the land after the strip of land is taken off and improvements made.” In Elliott v. Fulton County, 220 Ga. 377, 381 (139 SE2d 312) the Supreme Court, holding that this court erred in not approving the court’s charge in that case which it considered to- be identical with the charge in Bridges, and therefore substantially identical with the instructions here objected to, held: “In State Highway Board v. Bridges, 60 Ga. App. 240 (3 SE2d 907), which was a taking in fee, that court [the Court of Appeals] formulated a procedure in determining values identical with the charge here involved. In the present case the Court of Appeals said it was obiter dicta, which is debatable, but even so, it was published, and is a correct rule which was followed by the trial judge and could have been adhered to in this case.” Bridges was considered also in Civils v. Fulton County, 108 Ga. App. 793, 796 (134 SE2d 453), where the court stated: “. . . the ruling here is in complete harmony with the one there. The just and adequate compensation required to be paid by the condemnor for the property taken means for all of it taken from the one owner in the one condemnation proceeding. The whole includes all of its parts.” See also the discussion of Bridges, supra, in Georgia Power Co. v. Pittman, 92 Ga. App. 673, 675 (89 SE2d 577) and Vann v. State Highway Dept., 95 Ga. App. 243, 244 (97 SE2d 550). From all of these we may reach the conclusion that just and adequate compensation, in the first instance, means the value of the property taken, and that at least one, if not the better, way to determine such compensation is by using a measure of damages which informs the jury to find the difference in pecuniary value of the whole tract immediately before and immediately after the taking, to which should be added in a proper case the loss of value inherent in the land remaining to the owner, as to which the measure of damages is “the difference between the greatest market value of the land not taken before the strip is taken off and the improvements made, less the market value of the remainder of the land after the strip of land is taken off and improvements made.” Such a measure of damages is proper, and it is correctly given in charge where, as here, a majority of the witnesses who testified on the subject of value followed this formula and stated what, in their opinion, was the market value of the land before and after the taking, after which they testified to the consequential damages as represented by the difference in value of the remaining separated tracts of land resulting from the taking of a strip running through the center. Nor did the instruction, as contended in the second special ground, constitute the expression of an opinion on the part of the trial court that the tract had as a matter of fact suffered consequential damages. The instructions complained of were without error.

The trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

Felton, C. J., and Jordan, J., concur.