Georgia Power Company v. Sinclair , 122 Ga. App. 305 ( 1970 )

Deen, Judge.

1. In any eminent domain case the evidence and the instructions to the jury should be such that the jury can figure separately the value of the land or interest therein which is taken and the consequential damages to the land not taken, and by balancing the latter of course against any consequential benefits and adding the two figures can return a lump-sum verdict which includes both items of depreciated value to the landowner. Code § 36-504. Where the fee in part of the tract is being taken it has been held that evidence which does not separate these two items of damage but which merely states opinion evidence as to the value of the whole tract before and after the taking is illegal testimony and cannot be considered by the appellate court in making a determination as to whether there is any evidence to support the verdict in the amount rendered. State Hwy. Dept. v. Mann, 110 Ga. App. 390 (138 SE2d 610); State Hwy. Dept. v. Weldon, 107 Ga. App. 98 (129 SE2d 396). The same method of determining total compensation applies where a lesser interest than a fee simple in part of the land is involved, and the court instructed the jury in this case, which concerns the taking of a strip easement 75 feet wide across a 130-acre farm for purposes of erecting a 230,000-volt high-tension power line, that they should determine two separate elements: first, the damage done to that part of the land involved in the 75-foot strip, and secondly the diminution in value, if any, suffered by the land of the condemnee adjoining the strip. The charge thus follows the guidelines laid out in Ga. Power Co. v. Cannon, 120 Ga. App. 721 (172 SE2d 142), where it was held that in condemning a right of way for a power line easement, consequential damage to the "remainder” means the remainder of the owner’s land not involved in the easement and evidence should not be admitted which will confuse the jury into awarding double damages. In that case the witness first testified to the depreciated value of the land taken for the easement in order to show the market value of the "taking” and then testified to the depreciated value of the whole plot of land, including the land over which the proposed easement would run, in arriving at a figure for consequential damages. These amounts added up to double damages. We find no such evidence in this case. The condemnor’s witnesses testified to the depreciated value of the 75-foot strip and insisted that the remainder of the farm suffered no damage. Some of the condemnee’s witnesses testified as to the value of the farm as a whole and that the value of the farm as a whole with these high-tension lines running over it would be about $20,000 less. These witnesses did not testify as to the value of the easement taken and add such value to the total depreciated value of the land as in Cannon. Further, there were special issues raised in this case which gave such testimony a certain timeliness: The condemnee had a tobacco allotment; he had used the land lying within the easement for this purpose since it was the best tobacco land on the farm and achieved a higher yield than the other land to which the allotment was moved; the question of whether or not it was even necessary to move the tobacco area was in issue because the tobacco needed irrigation and another litigated question was whether there was danger in overhead irrigation which might shoot a high pressure jet of water into high voltage uninsulated lines bearing electricity. The jury might have disregarded this evidence, in which case the value of the tobacco yield would not be diminished by replanting on less fertile ground, but this is a problem which a local jury is much better able to solve than an appellate court. "The holdings of some cases that the loss of prospective profits is to be considered in determining the value of the real estate is one thing. This means no more than that the potential uses of the property may be proved for that purpose.” Bowers v. Fulton County, 221 Ga. 731, 739 (146 SE2d 884). The testimony as to the existence of the tobacco allotment was properly admitted as was the other testimony relating to the necessity or lack of necessity for moving it to another part of the farm and the consequent diminution in value depending on whether it was situated on land burdened or unburdened by the easement, and none of the testimony in this regard valued the same land twice in arriving at a damage figure. These enumerations of error are without merit.

2. An employee of the condemnor testified to the location of three-pole steel towers supported by guy wires which would bear the high-tension lines composed of three current-carrying wires and two overhead conductors as being approximately 85 feet tall and 1200 feet apart, the wires being up to one and three quarter inches in diameter, uninsulated and composed of aluminum wrapped around steel strands. The condemnee’s house is located approximately 200 feet away and a barn is a bit closer. Appellant contends that evidence was erroneously allowed on cross examination of this witness which tended to show either that due to the negligence of the power company or some act of God the wires might be torn loose from these poles and endanger these structures, and that this is an illegal method of attempting to prove consequential damages because too remote and speculative. However, the only question to which an objection was interposed was the last of the following sequence: "Are you familiar with Douglas in Coffee County? Do you know when this tornado hit some two weeks ago in Douglas? Did you go there? Did you see the power line there made out of that structure?” This was a perfectly proper method of cross examining the witness to test his knowledge of the behavior of structures like that proposed under stressful conditions. "The right of cross examination, thorough and sifting, belongs to every party as to the witnesses called against him. Code § 38-1705. It is a substantial right, the preservation of which is essential to a proper administration of justice, and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy; and being a substantial right it should never be abridged or denied by the court. News Publishing Co. v. Butler, 95 Ga. 559 (22 SE 282); Becker v. Donalson, 133 Ga. 864 (4) (65 SE 92); Rabun v. Wynn, 209 Ga. 80 (5) (70 SE2d 745).” Grady v. State, 212 Ga. 84 (2) (90 SE2d 664). Potential danger of an electric power line in close proximity to inhabited structures necessarily has a material connection with the market value of the adjacent land and is an item to be considered by the jury in assessing consequential damages. This testimony was properly admitted. The contention that the evidence demanded a verdict in favor of the condemnor, that no consequential damages had been suffered, is entirely without merit. Indeed, it is doubtful whether a verdict could ever be directed on such an issue, since value depends almost entirely on opinion evidence, and opinion evidence will never sustain the grant of a summary judgment, a directed verdict, or judgment notwithstanding the verdict. Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393); Harrison v. Tuggle, 225 Ga. 211 (167 SE2d 395).

Argued February 4, 1970 Decided June 22, 1970 Rehearing denied July 29, 1970 Bennett, Pedrick & Bennett, E. Kontz Bennett, Griffin & Houston, Harvey Griffin, for appellant. S. Dewey Hayes, W. P. Strickland, Jr., for appellee.

Judgment affirmed.

Bell, C. J., Panned and Quillian, JJ., concur. Evans, J., concurs specially. Whitman, J., concurs in the judgment. Jordan, P. J., Hall, P. J., and Eberhardt, J., dissent.