Opinion
38928.
DECIDED JUNE 19, 1961. REHEARING DENIED JULY 5, 1961.
Condemnation. Jones Superior Court. Before Judge Carpenter.
Eugene Cook, Attorney-General, Carter Goode, E. J. Summerour, Assistant Attorneys-General, George L. Jackson, for plaintiff in error.
J. Pierce Anderson, contra.
The rights of a licensee to maintain a pipe across the right of way of a public road for the supplying of water to the licensee's home and place of business are proper matters for consideration in the awarding of damages in a condemnation proceeding.
DECIDED JUNE 19, 1961 — REHEARING DENIED JULY 5, 1961.
On August 2, 1960, the State Highway Department of Georgia filed in Jones Superior Court its petition against J. Herman Morton, his wife and Gulf Oil Corp. to condemn certain lands therein described for use in widening the right of way of a highway known as State Route No. 22. In paragraph six of the petition to condemn were the following allegations: "The said owner generally and alienors and any other person known and unknown claiming any right, title, power, interest, ownership, equity, claim or demand in and to said land and all occupants, tenants, lessees, licensees and all holders, owners, and users of ways and easements in, across, and over said land, are made parties defendant to this action to the end that they may come into court and make claim to such interest or ownership or other right as they have in the same and to the proceeds arising therefrom."
Upon the trial of the case J. Herman Morton, one of the owners of the land being condemned, testified that there was a pipe running under the present road and across the lands being condemned by which water was brought from the well on his brother's farm to furnish his home, his store and service station and his farm needs, and that the interruption of his water supply would result in consequential damages to his place in the amount of $3,000. He also testified that it was his understanding that when the pipe was placed under the road it was done pursuant to a permit from the Highway Department but that he had never seen such a permit, and that if it were not renewed there would be necessity for drilling a well in order to maintain his water supply. This evidence was objected to upon the ground that it was purely a conclusion of the witness as to whether there would be a revocation of the permit and whether the damage would ensue. The objection was overruled, and when the jury returned a verdict for the condemnees the condemnor filed a motion for new trial which was later amended, and overruled.
The evidence objected to was clearly admissible and there was no error in overruling the objections thereto. It will be seen that the condemnor was seeking to acquire all rights of every kind, including those of a licensee or permittee, and in such a proceeding the condemnee is entitled to prove every element of consequential damage that may be relevant. There was no evidence as to whether the "permit" to install the water line was written or oral or as to what the terms thereof may have been. But it is obvious that the condemnee had, on the faith of the license or permit, expended money in laying and installing the water line. The license or permit, not otherwise terminated, was sought to be condemned in this proceeding. Consequently, the loss of the line, or the interruption of a water supply by reason thereof, is an element of consequential damage, and evidence thereof was properly admitted. Code § 85-1404.
The testimony that the interruption of the water supply would make it necessary to drill a well to replace it was enough to support the estimate of $3,000 in consequential damages. Moreover, this testimony was elicited on cross-examination by the condemnor.
The general grounds of the motion were expressly abandoned in the oral arguments before the court.
Judgment affirmed. Carlisle, P. J., and Nichols, J., concur.