Opinion
40297.
DECIDED OCTOBER 9, 1963.
Condemnation of land. Cook Superior Court. Before Judge Lott.
Maxwell A. Hines, Hugh D. Wright, for plaintiff in error.
Eugene Cook, Attorney General, Carter Goode, Assistant Attorney General, Asa D. Kelley, Jr., J. Lundie Smith, S. R. McCall, contra.
1. There is no merit to the objections raised by the general grounds of the motion for new trial as the evidence supported the verdict.
2. (a) Objections to a trial court's ruling on a motion to dismiss may not be raised on motion for new trial.
(b) Where a motion for nonsuit is denied by a trial court and the case proceeds to trial and a motion for new trial is filed which complains of the sufficiency of the evidence, the ruling on the motion for nonsuit will not be reviewed by an appellate court.
3. The record being devoid of any evidence that consequential benefits accrued to condemnee's abutting property, the trial court erred in instructing the jury that consequential benefits could be deducted from consequential damages.
DECIDED OCTOBER 9, 1963.
The State Highway Department of Georgia served notice upon Lee Ball, Mabel M. Kelley and The Farmers Bank of Tifton, individually, of its intention to condemn 13.129 acres of land and access rights in the abutting property for right of way purposes in the construction of a limited access highway. (At no time did Mabel Kelley or Farmers Bank appear in these proceedings.) A plat of the acres being condemned was attached to and made a part of the petition. Assessors were named and on April 9, 1959, they made an award of $6,245.15 actual damages for the land taken, as improved, and $37,550 consequential damages to the remainder of the property on the west and east of the strip taken. The condemnor appealed from the award to a jury in Cook Superior Court; and on February 13, 1963, the jury returned a verdict in favor of the defendant, Lee Ball, in the amount of $30,814. Being dissatisfied with the jury verdict and the court's judgment thereon, the condemnee filed a bill of exceptions assigning as error the trial court's action in overruling condemnee's motion for nonsuit and motion for dismissal of condemnor's appeal and in overruling condemnee's amended motion for new trial based on the general grounds and four special grounds.
1. On the general grounds of condemnee's amended motion for new trial the appellate court will not disturb the trial court's refusal to grant a new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be the character of the witnesses. Davis v. State, 68 Ga. App. 296 ( 22 S.E.2d 762); Aycock v. State, 62 Ga. App. 812 ( 10 S.E.2d 84). The appellate court is confined to reversing only where there is no evidence to support the verdict. Lanier v. Tullis, 73 Ga. 142; Adler v. Adler, 207 Ga. 394, 405 (7) ( 61 S.E.2d 824).
Under the rule in Housing Authority of City of Calhoun v. Spink, 91 Ga. App. 72 ( 85 S.E.2d 80), and cases it cites, the burden of proof is on the condemnor to prove both actual damages and consequential damages and in order "to obtain a verdict fixing that value, the taker must introduce evidence showing value." Condemnee contends that the State introduced no evidence on the question of what, if any, rights of access to and from the abutting lands were taken and no evidence as to the value of these rights. We find, however, that two of the State's witnesses testified as to the depreciation in value of the abutting property based on the fact that the western portion would be landlocked. This evidence is sufficient to cause the objections raised by the general grounds to be without merit.
2. Special ground 4 of the amended motion for new trial assigns error on the trial court's overruling condemnee's motion for nonsuit and motion to dismiss condemnor's appeal. These issues cannot be considered here.
The motion to dismiss is in the nature of a general demurrer, and it may not be raised on motion for new trial. Turner v. Barber, 131 Ga. 444 ( 62 S.E. 587); Leathers v. Leathers, 132 Ga. 211, 213 (2) ( 63 S.E. 1118).
The trial court's action in overruling condemnee's motion for nonsuit may not be considered, either under ground 4 or on direct exception, because the plaintiff in error has preserved and argued the general grounds of his motion for a new trial. Where a nonsuit is denied, the case proceeds to trial, and a motion for new trial is filed which complains of the sufficiency of the evidence, the ruling on the motion for nonsuit will not be reviewed. Echols v. Thompson, 211 Ga. 299 (1) ( 85 S.E.2d 423); Reserve Ins. Co. v. Foster, 96 Ga. App. 337 ( 99 S.E.2d 839).
3. Special grounds 5, 6 and 7 of the amended motion for new trial object to the trial judge's instruction to the jury that consequential benefits could be deducted from consequential damages. Condemnee correctly contended, and the State conceded, that the record was devoid of any evidence that consequential benefits accrued to condemnee's remaining abutting property. Under the rule in State Hwy. Dept. v. Andrus, 212 Ga. 737 ( 95 S.E.2d 781), Garden Parks, Inc. v. Fulton County, 88 Ga. App. 97 ( 76 S.E.2d 31), and Stanfield v. State Hwy. Dept., 95 Ga. App. 452 ( 98 S.E.2d 40), the charges complained of in special grounds 5, 6 and 7 are reversible error.
Judgment reversed. Hall and Pannell, JJ., concur.