Opinion
37825.
DECIDED NOVEMBER 5, 1959.
Condemnation. Turner Superior Court. Before Judge Gray. May 22, 1959.
Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, John R. Rogers, for plaintiff in error.
Reinhardt Ireland, Bob Reinhardt, James H. Pate, contra.
1. A condemnee may introduce evidence to show increased distance to local merchants, neighbors, and markets as an element of consequential damage where the State Highway Department has closed a county road which is used as ingress and egress to his property.
2. Ground 4 of the amended motion for new trial complains that the trial judge refused to permit the condemnor to cross-examine a condemnee's witness as to whether the witness had received payment for consequential damages to his property caused by the same road construction as that which the condemnee maintained damaged his property. The testimony which the condemnee sought to elicit by his cross-examination of the witness was, as held in Georgia Power Co. v. Brooks, 207 Ga. 406 ( 62 S.E.2d 183), inadmissible. Its exclusion was a correct ruling. "While the right of cross-examination of the witnesses called against a party is a substantial right, the trial judge may restrict the cross-examination to matters material to the issues. Clifton v. State, 187 Ga. 502, 508 ( 2 S.E.2d 102)." Waller v. State, 213 Ga. 294, 294 ( 99 S.E.2d 113).
3. The trial judge should have required the jury to return a verdict for a lump sum instead of instructing the jury to return "such and such amount" actual damages for the property taken and "such and such amount" consequential damages to property not taken; however, this is not such an error as to require reversal. Central Georgia Power Co. v. Preston, 137 Ga. 347 ( 73 S.E. 505).
DECIDED NOVEMBER 5, 1959.
The State Highway Department filed its petition for condemnation in rem against 0.603 acres of land of M. R. Irvin in the Superior Court of Turner County. The matter came on for trial and a verdict was rendered for the condemnee in the amount of $300 for the 0.603 acres of land taken and $9,350 as consequential damages to the land not taken, aggregating a total amount of $9,650. The condemnor filed a motion for a new trial on the usual grounds and later amended to set out special grounds only. Special grounds 1, 2, and 3 complain that the trial judge erred in allowing evidence to be introduced to show increased circuity of travel incurred by the condemnee resulting from the State Highway Department closing a county road which was one mode of ingress and egress to his property. Grounds 4 and 5 of condemnor's amended motion for new trial involve the admissibility of certain testimony concerning the amount of money received by condemnee's witness, T. J. Kelley, for the taking of a piece of land owned by him which had been condemned, of the same size and directly opposite, and similar to the strip taken from the condemnee, M. R. Irvin. Witness T. J. Kelley, in answer to a question on direct examination by condemnee's counsel as to his opinion of the value of the 0.603 acre taken from Irvin replied: "I figure it ought to be worth $400, that's what I got for mine." Later, on cross-examination of the same witness, the court, after striking the above testimony, sustained the condemnee's objection to the following question asked of the witness by condemnor's counsel, "Now a moment ago you testified you received $400 for yours, now that is all you received, is it not?" The court's refusal to allow the witness to answer the question forms the basis for ground 4 of the motion for new trial, and the court's ruling in striking witness Kelley's testimony as to what he had received for his lands forms the basis for ground 5. Ground 6 complains of the judge's instructions to the jury to return a verdict for "such and such amount" for actual land taken and further find "such and such amount" consequential damages for land not taken as being an improper instruction for the form of the verdict.
1. It is an elementary rule that the State must pay for property taken for a public purpose. Art. I, Sec. III, Par. I, Constitution Code § 2-301. The amount of damages shall include not only the value of the property taken, but shall also compensate for the consequential damage to the remaining property not taken. These consequential damages result from the actions of the State in severing a portion from the body of the condemnee's land and in interfering with his use and enjoyment of the remaining property. City of Atlanta v. Greene, 67 Ga. 386. The consequential damage is damage that is specially suffered by the condemnee not suffered by the public in general. Georgia Portland Cement c. Co. v. Jackson, 143 Ga. 84 ( 84 S.E. 461); Austin v. Augusta Terminal Ry. Co., 108 Ga. 671 ( 34 S.E. 852, 47 L.R.A. 755). The fact that the State has cut off access to property hinders the condemnee's use and enjoyment of the property. The evidence showing the inconvenience to the landowner because of the added distance to travel not only to his adjoining neighbors, but to neighboring markets and towns, is not immaterial and irrelevant. It relates to the precise issue being tried, i.e., damage to the property, in that it tends to establish the landowner's right to recover damages resulting from his property being cut off from direct routes to certain places. This question was ruled on in Central Georgia Power Co. v. Stone, 139 Ga. 416 (1a) ( 77 S.E. 565), which stated: "Inaccessibility to market from the balance of a farm, resulting from condemning a part of it and flooding it with water, is a legitimate subject of consideration by a witness in estimating the decreased market value of the part not taken." The trial judge did not err in allowing the testimony.
Headnotes 2 and 3 do not require further elaboration.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.