The Department of Transportation (DOT) brings this appeal from verdict and judgment for Nell Adams McLaughlin, Spartan Investment Corporation and Adams-Cates Company. On December 4, 1979 DOT filed this condemnation action against a parcel of property owned by McLaughlin, leased through her broker Adams-Cates to Spartan as lessee. The taking was for the purpose of widening the existing right-of-way of Interstate 75-85 in downtown Atlanta. This was a “total take” and the condemnees lost the land, a building thereon, and a fast-food restaurant business which was one of a chain known as Hardee’s. The lease did not expire for another 14 years.
DOT determined the total value to be $204,800 and deposited that sum in the registry of the court. The court permitted the fund to be dispersed by authorizing McLaughlin to withdraw $141,700, Spartan $57,800, and Adams-Cates received $5,300. All condemnees appealed for a jury trial but Spartan subsequently dismissed and accepted $57,800. The remaining condemnees’ appeal was tried before a jury which awarded McLaughlin $247,000 and Adams-Cates
1. It is alleged the trial court erred in directing the jury to return a verdict setting out separate sums to be awarded to the condemnees McLaughlin and Adams-Cates. It was DOT’s contention that “the sole issue to be determined by the jury was the total amount of just and adequate compensation for the entire property taken.”
DOT’s petition was a proceeding in rem against the entire parcel — and McLaughlin, Spartan and Adams-Cates as “owners.” A “lessee” is an owner of a property interest in a condemned parcel. 10 EGL 286, Eminent Domain, § 71. Just prior to trial DOT filed a motion in limine “for an order that the sole issue to be determined by the jury in this case shall be as to the amount of just and adequate compensation for the total property.” It was argued that “ [a]fter this verdict is returned, it will then be up to the judge to mold the verdict in such a way as to do complete justice and to avoid confusion of interests.” DOT’s counsel asserts that “the property taken in this case represents all of the interests in this lot... so we argue that there is one interest that is to be evaluated.” It was DOT’s position at trial that “[cjompeting claims between claimants... are to be determined by agreement or by the judge after a proper hearing or jury trial... the jury is going to be asked to determine the value of this parcel of property and it will be up to you, Your Honor, after a verdict has come in to determine how that is to be proportioned.” The trial court ruled that it would “let the jury determine how much Ms. McLaughlin is entitled to and how much Adams-Cates is entitled to and there will be a place for the jury to determine each figure ...”
The procedure which DOT articulates has been titled the “undivided fee rule” by Nichols. 4 Nichols on Eminent Domain 789-792, § 12.42 (2). It is not without its critics. 4 Nichols on Eminent Domain 820, § 12.42 (3).Procedural issues onhowto arrive at just and adequate compensation for separate interests of condemned property has been the subject of much controversy. See generally 4 Nichols on Eminent Domain 764-820. Absent statutory guidance, different states have adopted differing methodology. The United States Supreme Court, when confronted with this issue held: “But the Constitution does not require a disregard of the mode of ownership,’— of the state of the title. It does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should be paid for what is taken from him. And the question is, What has the owner lost? Not, what has the taker gained? We regard it as entirely plain that the petitioners were not entitled, as a matter of law, to have the damages estimated as if the land was the sole property of one owner...” Boston Chamber of Commerce v. City of Boston, 217 U. S.
The general rule followed by most jurisdictions is to require only one condemnation action, join all parties whose presence is necessary to condemn all interests, and to instruct the jury first to determine the value of the whole, and then secondarily determine the amounts to be awarded to the separate interests. See Annot. 94 ALR3d 696, 698-700, §§ 2 (a), 3; 27 AmJur2d 16, Eminent Domain, § 247; Polasky, The Condemnation of Leasehold Interests, 48 Va. LR 477.
Our Supreme Court has authorized such a procedure. In
Olshan,
supra, the court held: “It is the responsibility of all such claimants in their own self-interest, to cooperate together in seeing that just and adequate compensation for the entire tract is properly determined and deposited into the registry of the court. After that has been accomplished,
their competing claims
between and among themselves to the total funds deposited
must be determined either by agreement,
or
by the trial judge
after a proper hearing,
or by a jury if the trial judge allows a jury trial
of the issues raised by competing claimants.”
2. In its second enumeration of error DOT argues that the trial court erred in directing the jury to return a verdict awarding a separate sum to each of the two claimants rather than directing the jury “to return a single verdict for the total value of the property taken and then molding the verdict to apportion it among the respective interests.” This argument merely restates the first enumerated error in a different manner. DOT’s position at trial was that the jury should reach one figure for the total amount due and then the judge was to determine how much each claimant received. Such a procedure is impossible where the witnesses give different answers as to the value of the different interests and arrive at a lump sum which is then to be divided among the various claimants by the judge when “molding” the judgment. The result we reach here is controlled by our decision in the first division and
Dept. of Transp. v. Great Southern Enterprises,
3. Ms. McLaughlin, the owner of the fee, was permitted to testify as a non-expert witness as to her opinion of the value of the property taken. DOT objected at trial that the “testimony lacked any proper foundation ... as McLaughlin was not qualified as an expert witness, possessed no general knowledge of land values around the subject property and had no opportunity or basis for forming a correct opinion as to value.”
The trial court emphasized that Ms. McLaughlin was a non-expert witness. An owner need not be an expert to testify as to her opinion as to the value of her property “if [she] has had an
4. The last two allegations of error complain that the verdict “exceeded the highest value testified to by any witness” and is grossly excessive. We agree that the verdict exceeded the highest value testified to by any witness and reverse. The jury verdict of $247,000 to the plaintiff owner-lessor cannot be reached by the estimates of any of the expert witnesses. Unless it is supported by the testimony of the owner — McLaughlin, it is not within the range of the evidence. Although the condemnor has the burden of proof to show the value of the property taken and any consequential damages
(Ga. Power Co. v. Brooks,
The trial court properly instructed the jury that the measure of the value of the owner’s interest is the sum of the present value of the right to receive rent over the period of the lease, less the real estate commission which would have been due to the realtor. This court has stated the rule as: “... the owner is entitled to have awarded to him the present value of the right to receive rents over the period of the lease, together with whatever the value of the reversion may be.”
City of Atlanta v. McLucas,
Judgment reversed.