Central Georgia Power Co. v. Cornwell , 141 Ga. 643 ( 1914 )

Atkinson, J.

The Central Georgia Power Company, as owner and controller of a water-power at Capps and Lloyd Shoals on the Oemulgee river in Jasper and Butts counties, was engaged in constructing a dam thereon and a power plant for generating electricity by water. W. C. Cornwell owned a tract of land adjoining the river some distance above the shoals. Por the development of the enterprise it was necessary to overflow a portion of this land. Condemnation proceedings were instituted for the right so to do,, and an award was rendered from which an appeal was taken to the superior court. The power company, being dissatisfied with the verdict, made a motion for new trial and excepted to the judgment overruling the motion. Meld:

1. There was evidence that the land sought to be taken was valuable not only for agricultural purposes but because it was peculiarly adapted to, arid necessary for, the development of water-power at the shoals of the river. This evidence authorized the charge: “In estimating the market value of the property taken for public use, all of the capabilities of the property, and all of the uses to which it may be applied, or for which it is adapted, are to be considered, and not merely the condition it is in at the time and the use to which it is then applied by the owner.” Gate City Terminal Co. v. Thrower, 136 Ga. 456 (71 S. E. 903); Young v. Harrison, 17 Ga. 30.

(a) Nor was the charge erroneous on the ground that it was argumenta- , tive and intimated an opinion that the property in question was capable of being adapted to some more valuable use than the one to which it , was being applied.

2. In stating the contentions of the parties the court inadvertently alluded to the condemnor as the defendant, and to the condemnee as the plaintiff, but, taken in connection with the entire charge, the statement was '. not likely to have misled the jury. Under these circumstances it will furnish no ground for a new trial. Becker v. Donalson, 138 Ga. 634 (5), 645 (75 S. E. 1122).

3. In the improvement contemplated by the plaintiff, a ferry affording access to a particular market was necessarily, destroyed. There being evidence to this effect, it was not erroneous to charge: “The defendant contends that the construction of the improvement of the plaintiff has made the balance of the property less accessible to market. You will look to the evidence, see what the evidence shows with/this respect, see whether or not this change in the situation of the property has affected the market value of the property.” Central Georgia Power Co. v. Stone, 139 Ga. 416 (77 S. E. 565).

4. During the course of the argument counsel for the condemnee made certain remarks to which exception was taken by counsel for condemnor. The court ruled that the remarks were improper, and thereupon counsel for condemnee announced a withdrawal in. the presence of the jury. In view of the character of the remarks, and the action takeri by the court, this was not sufficient ground for a new triál.

5. Both parties introduced evidence tending to establish the market value of the land sought to be condemned. The condemnor introduced' a bond for title, given by the eondemnee to a third person, for the purchase of a part of the land for a given price. It was competent for the condemnee to reply to this evidence by showing that the price fixed in the contract of sale was in further consideration that the eondemnee and his family should have certain ferry privileges. This testimony was not objectionable on the ground that it sought to vary a written contract, and concerned a parol agreement not to be executed within a year.

April 27, 1914.

Condemnation of land. Before J. E. Pottle, judge pro bac vice. Jasper superior court. January 23, 1913.

Hatcher & Smith and Greene F. Johnson, for plaintiff. Dorsey, Brewster, Howell & Heyman and W. S. Florence, for defendant.

6. The evidence authorized the verdict, and there was no abuse of discretion in overruling the motion for new trial.

Judgment affirmed.

All the Justices concur.