11 S.E.2d 418 | Ga. Ct. App. | 1940
Lead Opinion
The court did not err in overruling the motion for new trial.
Private property can not be taken or damaged for public purposes without just and adequate compensation being first paid. This constitutional provision does not necessarily restrict the owner's recovery to market value as the term is sometimes used. The owner is to be paid just and adequate compensation for his property; that is, the value of the property to him, not its value to the condemnor. The measure of damages for property taken by the right of eminent domain, being compensatory in its nature, is the loss sustained by the landowner, taking into consideration all the purposes for which the property is available. Generally speaking, the measure of damages is the market value of the property to be taken, and when this would give just and adequate compensation to the owner this rule should be applied. But it was held by this court in Elbert County v.Brown,
The portion of the charge excepted to in the present case, when considered in connection with the entire charge and the theory under which the case was tried, does not require a reversal of the judgment. The Housing Authority of the City of Augusta was seeking to condemn property of the defendant in error, consisting of her dwelling-house and lot and other improvements thereon. The gist of the testimony introduced upon the trial of the case as to the value of the property sought to be condemned related to its value as a home for the owner, and what it would cost to replace it for her in the same locality where her property was located. In fact during the trial, in a colloquy between the court and the attorney for the Housing Authority, condemnor, it was stated by the court and agreed by counsel that the rule as to the measure of damages was the "actual value of the property to the owner" or "its equivalent," that is, the actual value of that property to the owner, or what it would cost to replace it in the same locality, not the market value. Under the facts and circumstances of this case, the portion of the charge excepted to was not harmful to the plaintiff in error, and it can not now be heard to complain of such charge.
Judgment affirmed. Stephens, P. J., and Sutton, J.,concur.
Dissenting Opinion
I think the charge of the court was error requiring a reversal of the judgment. It can not be disputed that the overwhelming authority in this State, under the decisions of the Supreme Court and this court, is that the measure of damages for taking private property for public purposes is the fair market value of the property taken (no consequential damages to property not taken being involved). Some of the decisions so holding are as follows: Harrison v. Young,
I do not think the counsel for the Housing Authority intended to convey to the trial court the idea as interpreted by the majority of the court, and that he is therefore estopped to make the exception to the charge. Counsel had been interrogating a witness as to what it would cost the owner to replace the house on another lot. The following colloquy ensued: The court: "Let me ask you this, Mr. Howard. Isn't this the rule? Suppose those people had to get out of that house, and they have got to build them a house somewhere else. You got to pay them the actual value of the property to the owner." Counsel: "Or its equivalent, yes, sir." The court: "Now they are going to move two blocks from there. They got a lot and they are going to build a house, and they are going to build a house as near like the one they got as they can. Isn't that the rule? The actual value of that property to the *489 owner to put down that house right across the street there?" Counsel: "Well, yes, sir, in that same locality. Those were the factors I was bringing out." The court: "It isn't the fair market value. That is not the rule." The context of the conversation indicates that counsel contended that the value could be found from factors which he was developing by evidence which could be used for that purpose. I do not think that he intended to agree that the market value was not the measure of damages.