Condemnor, Macon-Bibb County Water and Sewerage Authority, appeals from a jury verdict and judgment for the condemnees, W. R. and Wachula Reynolds. Mr. and Mrs. Reynolds owned approximately 37 acres of land at the end of Taylor Terrace Road in Bibb County. The street ended at the cul-de-sac on which the Reynolds home was located. The Reynolds property on the east was bisected by the Southern Railroad in a northerly-southerly direction. Approximately 24.5 acres was on the western side of the railroad where the Reynolds home was located and 12.5 acres was located on the east side of the railroad and was bounded on the east by the Ocmulgee River. The acreage along the river was approximately 2,070 feet in length and varied in depth from the river to the railroad. The Reynoldses prized their riverfront property for its privacy and recreational usage. Mr. Reynolds stated that his family used the land almost daily.
The Macon-Bibb County Water and Sewerage Authority condemned a permanent 25 foot sewer easement, and a temporary 60 foot construction easement, across the entire 2,070 feet of the riverfront property between the railroad and the river. A special master made an award of $2,300 for the taking of the easement with no consequential damages to the remainder of the property. An appeal was made to the Superior Court of Bibb County and the condemnor brings this appeal from the jury verdict for $6,000 and judgment taken on the verdict. Held:
1. The condemnor contends the trial court erred in overruling its motion to limit the determination of compensation for the condemned land to the interest of Mrs. Reynolds. We do not agree. The 12.5 acres of land along the river were divided into two tracts. One tract, consisting of 1.29 acres, belonged to Mr. and Mrs. Reynolds as tenants in common. The remainder of the 12.5 acres was exclusively owned by Mr. Reynolds. The condemnor chose to condemn both parcels in one action, although ownership of each parcel was different and only one figure was arrived at for both parcels. Upon receipt of the award of the special master, dated May 13,1981, counsel for the Reynoldses filed an appeal to the Superior Court of Bibb County — with the date of filing being May 22,1981, and the caption depicting the County Water and Sewerage Authority as Plaintiff and a Tract of Land in Land Lot 323 of the 13th District of Bibb County, and Mr. and Mrs. Reynolds, and the Tax Commissioner and Probate Judge, as defendants. The body of the appeal stated: “Now comes Mrs. *349 Wachula Reynolds, condemnee in the above styled matter, and being dissatisfied with the award . . . enters their appeal...” (Emphasis supplied.) On December 15, 1981, counsel for the Reynoldses filed a motion to amend the notice of appeal to add the name of Mr. Reynolds. Counsel’s attached affidavit showed Mr. Reynolds “was always a party to the appeal, but due to clerical error and oversight his name was omitted from the first line of the paragraph asking for the appeal of said decision.” The trial court approved the amendment. We find no error.
In
Hamilton Mtg. Corp. v. Bowles,
2. The admission of evidence that establishment of a sewer line easement across the condemnees’ property would make their property more accessible to trespassers, “dune buggies, motorcycles, gocarts and the like,” is enumerated as error. Condemnees’ expert on value, Mr. Stokes, testified that riverfront property, like the condemnees,’ is very desirable and that he would enjoy it because of “the serenity, the quietness.” He found the 60 foot clear-cut construction easement through 100% wooded riverfront property to be a detriment and gave as an example that the morning he testified at this trial he had shown some timberland to a client and they had driven their pick-up truck over an easement right-of-way across *350 someone’s land to view the property. Mr. Reynolds testified that this property is valuable to him because “I just like to be isolated and be by myself, and get away from all of it. . . Down there you are away from it all... We are on a dead-end street... There is no way anybody could get in there unless they come up the railroad track or come down by my house, and that’s what I like about it. And I like it like it is, and if they do anything to it to tear it up — dune buggies coming up there, people are going to be coming up that [easement] line like all of Georgia Power and gas lines ...” Following objection, condemnees’ counsel explained that the testimony was offered to show “that makes that land valuable to him, and the uses he makes of it. And if his seclusion and privacy is part of it, he has a right to testify to that.” Mr. Reynolds said that before the condemnation, this land was secluded and was for his family’s personal and private use, and they used it on a daily basis. He stated that he would not sell his riverfront property because “I don’t want people in there behind me. That’s why I got it. Privacy.” We find such testimony to be admissible.
The legal concept of a right to privacy was first espoused in an article in 4 Harvard Law Review 193, in 1890, entitled, “The Right to Privacy,” by Samuel D. Warren and Louis D. (later U. S. Supreme Court Justice) Brandéis. It has been said that this one article “enjoys the unique distinction of having synthesized at one stroke a whole new category of legal rights and of having initiated a new field of jurisprudence.” 62 AmJur2d 678, Privacy, § 2. After the authors had discussed earlier efforts of the law to protect personal rights of the individual, as the “right to life,” they concluded that the scope of such right had been broadened “to mean the right to enjoy life — the right to be let alone ...” 4 Harv. L. R. at 193. The right of privacy has been described as not one of a right to secrecy, but as the right to define one’s circle of intimacy. Briscoe v. Reader’s Digest Assn., 4 Cal 3d 529 (
No one would deny that a panoramic or scenic view afforded by certain realty is an element to be included in assessing value. 4 Nichols on Eminent Domain 12-294, § 12.314. In like manner, privacy afforded by location of realty, like a mountaintop, riverfront or oceanfront location, can also be a factor in determining market value of such realty. In determining market value of land taken or damaged in an eminent domain proceeding, it is proper for the trial court to admit proof of all factors which an owner could reasonably urge upon a prospective purchaser which could tend to favorably influence the
*351
person.
Fulton County v. Cox,
3. The trial court denied condemnor’s requested charge dealing with the measure of damages, and the condemnor objected to that portion of the charge given by the trial court dealing with computation of the measure of damages. We agree that the charge given by the court was error.
The court charged that “the just and adequate compensation the defendant is entitled to under the Constitution has been otherwise defined as the actual value of his loss or their loss. Ordinarily, actual value is the same thing as fair market value... [and after defining fair market value, added] while fair market value is ordinarily the same as actual value, there may be circumstances in which it may not be the same ... It is up to you to determine whether such circumstances exist. You are entitled to consider the peculiar value of the property to the owner under certain conditions. But before you consider the peculiar value of the property to the owner you must find that the relationship of the owner thereto is peculiar; that its advantages to him or her or them are more or less exclusive, and would not be likely to apply to another owner.” (Emphasis supplied.)
Our Constitution, Art. I, Sec. Ill, Par. I (Code Ann. § 2-301), provides in pertinent part, that “[p]rivate property shall not be taken, or damaged, for public purposes, without
just and adequate compensation
being first paid.” (Emphasis supplied.) However, the Code, in implementation of this Constitutional provision (Code Ann. § 36-504 (Code § 36-504)), states that assessors shall
“assess the value”
of the property taken and the consequential damages, and: “Provided, further, that nothing in this section shall be so construed as to deprive the owner of the
actual value
of his property so taken or used.” (Emphasis supplied.) Hence, in an eminent domain proceeding, the “just and adequate compensation” due a condemnee
*352
is “the value” of the land taken, plus any consequential damages to the remainder if there is a partial taking, which may not be less than “the actual value” of the property taken or damaged. The word “damaged,” has a broader meaning than the word “taken,” and is designed to impose liability on a condemnor for consequential injuries to property which would not otherwise exist. See generally 29A CJS 456, Eminent Domain, § 111; 26 AmJur2d 829, Eminent Domain, § 160. “[T]o warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property, in excess of that sustained by the public generally.”
Pause v. City of Atlanta,
“Value” is a generic word, and under different circumstances has been used to represent “actual value,” “market value,” “reasonable value,” “cash value,” “special value,” and “peculiar value,” when assessing damages.
State Hwy. Bd. v. Bridges,
The bench and bar of this state have commingled and confused the terms — “peculiar value” and “unique value.” See
Housing Auth. of Atlanta v. Troncalli,
Nichols restricts the term “peculiar value” to property having an “existing use” which the owner of the property is devoting it at the time it is taken by eminent domain when such land “possesses a peculiar value for such use...” 4 Nichols on Eminent Domain 12-302, § 12.3141. “[I]t must appear, not that the property is peculiar, but that the relationship of the owner thereto is peculiar — its advantages to him more or less exclusive — that is, that it is property having value peculiar to the owner only, and without possible like value to others who might acquire it.” Id. at 12-303;
City of Gainesville v. Chambers,
The issue of whether land taken or damaged in an eminent domain proceeding is unique or peculiar is a jury question. Cf.
Housing Auth. of Atlanta v. Southern R. Co.,
We must now determine whether the evidence supported the giving of the charge — permitting damages to be computed on the basis of the condemned property having a value “peculiar” to the owner — as opposed to the general method of computing damages based on fair market value. The only evidence as to uniqueness or peculiarity of this property was its “riverfront” location and its “privacy.” We do not find the “riverfront” nature of realty to support a finding of either “uniqueness” or a value “peculiar” to the owner. It is not unique in that it is one of a kind or so infrequently bought or sold as not to have a “market value.” A “riverfront” location, the same as an “oceanfront” location of realty might enhance the value, but it does not remove it from that general category of realty having a market value which is ascertainable. “Riverfront” land does not possess a value or use which is “peculiar” to the present owner since it would have a similar value to all successors in title to the same realty. See 4 Nichols on Eminent Domain 12-302, 12-304, § 12.3141.
Is the right of privacy sufficient to make condemned realty unique or does it have a value “peculiar” to the owner? We find that it does not. The right of privacy, to a greater or lesser extent, is inherent in ownership of all realty. Lesser in urban areas — greater in rural areas — but dependent, to an extent, upon additional measures taken by the occupant such as privacy fences, walls, guard dogs, etc. The concept of privacy is not unique to a property owner in that it is not a one of a kind factor that exists only in this particular parcel. As stated earlier, privacy — to a greater or lesser extent is inherent in the ownership of all property and is not unique just to this parcel. Neither is it a factor with a current use value which is peculiar only to the present owner and would not pass to a successor in title. 4 Nichols on Eminent Domain 12-112, § 12.22 [2].
In summary, while evidence of “privacy” and “riverfront” location of realty are elements which are admissible in establishing “market value” of realty, and any decrease of “privacy” following completion of the easement through the property would be a factor to be assessed by a jury in determining if there was any diminution in the value of the property — hence, to be included in computing consequential damages to the remainder; neither “privacy” nor the “riverfront” location of the condemned property, as a matter of law, are sufficient to authorize a charge on, or a finding of, “unique,” or an existing use value which is “peculiar” to the owner. Both “privacy” and “location” are elements generally included in any finding of market value, and as long as there is an ascertainable market value, no consideration can be given to uniqueness or value peculiar to an owner. 4 Nichols on Eminent Domain 12-110, § 12.22 [2].
Accordingly, as a matter of law, there being no evidence of uniqueness or existing use with value peculiar to the owner, it was error to give a charge permitting computation of damages on a basis other than market value.
State Hwy. Dept. v. Thomas,
4. We have examined the remaining enumerations of error and found them to be without merit, mooted by the above holding, or not likely to recur in the event of a new trial.
Judgment reversed.