Department of Transportation v. Freeman , 187 Ga. App. 883 ( 1988 )

Sognier, Judge.

Robert Freeman and the other owners of 2.627 acres of land at the “Brookwood Interchange” of 1-75 and 1-85 in Atlanta were awarded $400,000 by the jury in this condemnation proceeding. The Department of Transportation appeals from the trial court’s denial of its motion for new trial.

The property in question is landlocked between the interstate highways and the property owned by Southern Railroad, which operates the Brookwood Station. In an earlier appeal, in which the facts of this case are set forth more fully, we reversed the jury verdict for the trial court’s failure to give condemnees’ requested charge concerning the availability of the procedure set forth in OCGA § 44-9-40 authorizing the grant of a private way to a property owner with no means of ingress, egress or access to his property. Freeman v. Dept. of Transp., 177 Ga. App. 51 (338 SE2d 484) (1985).

1. Appellant contends that the trial court’s failure to give appellant’s request to charge no. 39, in which the full provisions of OCGA § 44-9-40 were set forth, constituted reversible error. OCGA § 44-9-40 provides: “(a) The superior court shall have jurisdiction to grant private ways to individuals to go from and return to their property and places of business. Private ways shall not exceed 20 feet in width and may be as much less as the applicant may choose or as the court may find to be reasonably necessary. They shall be kept open and in repair by the person on whose application they are established or his successor in title, (b) When any person or corporation of this state owns real estate or any interest therein to which the person or corporation has no means of access, ingress, and egress and when a means of ingress, egress, and access may be had over and across the lands of any private person or corporation, such person or corporation may file his or its petition in the superior court of the county having jurisdiction; said petition shall allege such facts and shall pray for a judgment condemning an easement of access, ingress, and egress not to exceed 20 feet in width over and across the property of the private person or corporation. The filing of the petition shall be deemed to be the declaration of necessity; however, where it appears that the condemnor owns a right of access, ingress, and egress to his property over another route or owns an easement to a right of private way over another route, which right or easement is not less than 20 feet in width and which alternate route affords such person or corporation a reasonable means of access, ingress, and egress, or where the judge shall find that the exercise of such right of condemnation by the condemnor is otherwise unreasonable, the judge of the superior court is authorized under such circumstances to find that the condemnation and the declaration of necessity constitute an abuse of discretion and to enjoin the proceeding.” (Emphasis supplied.)

The trial court charged the legal principles of all but the emphasized language in OCGA § 44-9-40 (b) in its instructions to the jury. Appellant argues that the absence of the above-emphasized language in the charge constituted reversible error in that the possibility presented in that language, that the superior court might refuse to proceed with the condemnation of a private easement providing access to appellees’ property by virtue of the condemnation being unreasonable, was improperly removed from the jury’s consideration. We reject appellees’ argument that the “otherwise unreasonable” language in OCGA § 44-9-40 does not apply to a determination whether a private way may be condemned when landlocked property is involved. The language of the statute does not support an interpretation that the question of reasonableness is not applicable when the property sought to be accessed by a private way is landlocked. “In order to prove the necessity of a private way, OCGA § 44-9-40 (b) requires the condemnor to show he has no reasonable means of access to his property. [Cit.] Where the condemnor proves that he has no access to his property, i.e., that it is landlocked, he makes out a prima facie case of necessity under the statute. The burden of persuasion then shifts to the condemnee to prove the condemnor has a reasonable means of access to the property.” International Paper Realty Corp. v. Miller, 255 Ga. 676, 677 (341 SE2d 445) (1986). The “prima facie case of necessity” shown by the existence of landlocked property does not equate to an absolute entitlement to a private way to such property regardless of the reasonableness involved. For example, had the only means of accessing appellees’ property mandated the destruction of Brookwood Station, a structure on the historical building register, a superior court judge could have considered the grant of a private way to the landlocked property to be unreasonable and enjoined it. Thus, neither the statute nor the case law supports appellees’ interpretation of OCGA § 44-9-40.

However, we find no reversible error in the trial court’s refusal to charge appellant’s request to charge no. 39 because, while correct as an abstract principle of law, it was not adjusted to the evidence adduced at trial. While there was evidence that the potential grantor of the private way, Southern Railroad, would have vigorously opposed the creation of a private way for obvious safety reasons if a grade level crossing of its tracks had been involved, appellees’ evidence re-fleeted plans for accessing the property by tunnel or bridge over the tracks. There was no evidence a private way obtained by bridge or tunnel to the property would be unreasonable; the only evidence even addressing these plans was the testimony of one railroad official who stated that he would have opposed the access because the construction would have interfered with the railroad’s business. The same official also acknowledged that the interference the railroad had experienced during the construction of the tunnel currently providing railroad employees access under the rails had ceased.

Although appellant points to evidence that accessing the major commercial building appellees claimed they would have built on the landlocked property would have required more than the twenty foot private way, there was no evidence appellees would have been legally prevented from constructing the building due to the twenty-foot limitation and we do not find the feasibility of implementing a grantee’s plans for the landlocked property to be relevant to the question whether granting the private way would be “otherwise unreasonable.” The feasibility issue was appropriately left for jury consideration in regard to the claimed value of the condemned property and was posited to the jury in a charge that thoroughly presented the possibility that appellees’ plans for the property would be subject to the twenty-foot private way limitation. The jury rendered a verdict which this court should uphold if it can be done in accordance with the law, Bob Lairsey Ins. Agency v. Allen, 180 Ga. App. 11, 12 (1) (348 SE2d 658) (1986), and since the law does not require the giving of a charge that is not pertinent and adjusted to the facts, see Revbar Corp. v. Marthaler, 180 Ga. App. 559, 560 (1) (349 SE2d 795) (1986), the trial court did not err by refusing to charge appellant’s request to charge no. 39.

2. Appellant contends the trial court erred by admitting evidence of property development plans drawn up by an architect in 1962 and a local newspaper article published in 1965 discussing plans for the rebuilding of the Brookwood Interchange on the basis that they were not relevant to the issue of value on the date of taking. Appellant argues that appellees sought by the admission of this evidence to obtain compensation for any inability to utilize fully the property prior to the actual condemnation thereof, citing Josh Cabaret v. Dept. of Transp., 256 Ga. 749-750 (4) and (5) (353 SE2d 346) (1987). However, the record reveals that the testimony regarding appellees’ development plans was admitted as relevant to the jury’s determination whether a reasonable probability existed that the land could be used for commercial purposes as contended, see Georgia Power Co. v. Cole, 141 Ga. App. 806-807 (1) (234 SE2d 382) (1977); see also Dept. of Transp. v. Pilgrim, 175 Ga. App. 576, 578 (2) (333 SE2d 866) (1985), and the newspaper article was admitted to explain why appellees did not follow through with their development plans. See OCGA § 24-3-2. The evidence thus served to rebut appellant’s position at trial that appellees never intended to develop the property commercially. “ ‘Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. [Cits.]’ [Cit.]” Weathers v. Cowan, 176 Ga. App. 19, 20 (1) (335 SE2d 392) (1985). Appellant’s reference to Josh Cabaret is therefore inapt, and we find no abuse of the trial court’s discretion by admitting this evidence.

3. We find no merit in appellant’s contention that thé admission of testimony by two expert witnesses on behalf of appellees, Julian Diaz and Carl Tschappat, improperly introduced evidence relative to the value of appellees’ property subsequent to the taking. The record reveals that both witnesses clearly based their opinions regarding the value of appellees’ property as of the date of taking in December 1980. The complained-of testimony by both witnesses merely reflected their recognition that the real estate market in 1980 was beginning to undergo dramatic changes as to property values in the midtown area where appellees’ property is situated, and that the manifestation of that change in the years following had confirmed their opinions of the trend. The record thus does not support appellant’s contention and Wright v. MARTA, 248 Ga. 372 (283 SE2d 466) (1981), cited by appellant, is inapposite.

Judgment affirmed.

Birdsong, C. J., Banke, P. J., Pope, Ben-ham, and Beasley, JJ., concur. Deen, P. J., concurs and also concurs specially. McMurray, P. J., and Carley, J., dissent.