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CLEMONES et al. v. ALABAMA POWER COMPANY.
39767.
Condemnation of land. Floyd Superior Court. Before Judge Hicks.
FRANKUM, Judge.
1. The admission of evidence over objection as complained of in special ground 1 of the motion, even if erroneous, will not be cause for reversal since thereafter the same or substantially the same evidence was admitted without objection.
2. Properly construed the testimony of the condemnor's expert witnesses as to the sales price of allegedly comparable property was not admitted as primary evidence of the fact but merely as a statement of one of the factors upon which such expert witnesses' opinion as to value of the land condemned was based. Under all the facts and circumstances the admissibility of this evidence was at most only doubtful, and the court did not err in admitting it.
3. (a) The rights of the condemnor in the property condemned are fixed by the statute granting the authority to condemn, and by the petition and prayers and by the final order of condemnation, and evidence which tends to show that such rights are different from those granted in the final order of condemnation entered pursuant to the statute, is not admissible.
(b) Where there are conflicts between the recitals of fact contained in the motion for a new trial and the approved brief of the evidence the latter prevails.
4. Evidence of the policy of one production credit corporation not to make loans on lands subject to an easement for flooding is not admissible to show that the loan value of the land for that purpose has been destroyed.
5. An objection to the admission in evidence of an entire document, a part of which is admissible, is not a good objection.
6. The general grounds of the motion, having been expressly abandoned, are not passed upon.
This is a condemnation case which arose as a result of the construction by the Alabama Power Company, the condemnor, of the Weiss Dam in Alabama. The Alabama Power Company acquired by condemnation fee simple title to 112.6 acres of the condemnees' land to be used as a part of the permanent pool for the storage of water to be backed up by the said dam, and also acquired an easement on an additional 277 acres of the condemnees' land with the right to flood or cover such additional acreage from time to time and to prevent human habitation or structures thereon. The assessors awarded the condemnees $60,350. The condemnor appealed to the Superior Court of Floyd County, and the jury returned a verdict for the condemnees in the amount of $48,500. The condemnees filed a motion for a new trial on the general grounds and amended the motion by the addition of 12 special grounds. The trial court overruled that motion, and the exception here is to that judgment.
1. A witness for the condemnor, Douglas McCrary, was qualified as an expert in hydrology, hydraulics and power plant design. According to this witness' testimony "hydrology is the science which deals with water that flows in rivers, rainfall, and such related subjects." He was permitted to testify as to his studies relating to the water flow in the Coosa River adjacent to the condemnees' land, and as to the number of floods that occurred on that section of the river between 1937 and 1957 He stated that "in the 20 year period that I studied . . . there have been some 22 floods that occurred on this section of the river." He then stated that the floods occurred generally in the first three months of the year, but that there had been some in April, in September, and in December, and he then specifically detailed by the months of their occurrence the floods and the elevations of each above sea level. The condemnees objected to this testimony on the ground that it was hearsay, being based on reports of the Department of Interior which they (the condemnees) had not had an opportunity to examine. This objection was overruled, and this ruling is assigned as error in special ground 1 of the motion.
2. Special grounds 2 through 6 of the motion for new trial assign error on the admission in evidence of testimony of two witnesses for the condemnor as to the sales price of comparable property, which was one factor these witnesses had used as the basis of their opinion as to the value of the condemnees' property. The substance of the objection in each of these grounds was that the evidence was inadmissible because it had not been shown by prior testimony that such comparable sales were freely and voluntarily made. None of these grounds shows harmful or reversible error in the admission of the testimony over the objections urged.
It is well established in Georgia that before the jury may consider such evidence in assessing the value of the property condemned, such comparable sales must be shown to have been sales of property that were similar to that being condemned, and that the sales were freely and voluntarily made at or near the time of the taking. Flemister v. Central Ga. Power Co., 140 Ga. 511 (79 SE 148). As was pointed out in Fulton County v. Cox, 99 Ga. App. 743, 745 (109 SE2d 849), a duty devolves upon the trial judge of making a preliminary determination as to the similarity of the property sought to be compared, the nearness of location, and in point of time of the sale with respect to the condemnation, and whether the particular sale was made under circumstances as to the time and manner of sale as to be truly illustrative of the value of the property being condemned. These rules, however, would seem to apply only where such evidence is offered as direct evidence of value of the property being condemned for the jury's consideration in assessing the value. State Hwy. Dept. v. Wilkes, 106 Ga. App. 634 (127 SE2d 715). The evidence in this case, the admission of which is complained of in these grounds, was not admitted for this purpose. The witnesses had qualified as expert real estate appraisers, and in each instance gave opinion testimony as to the value of the condemnees' land and as to the damages which the condemnees had suffered on account of the taking. These opinions were admissible without the necessity for the witnesses to state the facts upon which they based their opinions. Code 38-1709, 38-1710. However, it was not inappropriate for the witnesses, even though expert, to be permitted to state the factual basis upon which they formed their opinions. Code 38-1708. This was the sole purpose for the admission of this testimony as to the sales price of the comparable property, and the jury was instructed by the court that this testimony was not to be taken by them as evidence of the actual market value of the property being condemned, but that it was solely for the purpose of determining how well qualified such expert witnesses may have been when they gave their opinion as to the market value of the property in question. The court having thus instructed the jury, the jury will be presumed to have limited its consideration of this evidence for the purpose of determining how well qualified the experts were.
Furthermore, Herbert Fick, one of the witnesses whose testimony was complained of in these grounds, after testifying at length as to his qualifications and experience as a land appraiser and before giving his opinion as to the value of the condemnees' property, stated that there were three standard accepted approaches in determining the value of property, to wit: The income capitalization method, the "comparable sale or market data approach, wherein you compare the farm you are appraising, with a property that has sold on the open, free market," and finally, the cost approach. The other witness, M. J. Williamson, after also outlining his training, experience, and qualifications as an expert real estate appraiser, stated that the term fair market value means "the maximum price which the property would bring if exposed to sale in the open market, with a reasonable time to find a purchaser buying with full knowledge of all the uses to which the property was adapted, and for which it was capable of being used, with neither the buyer nor the seller being under compulsion to buy or sell." This witness was then permitted to give his opinion as to the "fair market value" of the condemnees' property, and he thereafter gave as the basis of this opinion various factors which he considered, one of which was a single comparable sale as to which he stated that he had verified the purchase price of the property by talking to the purchaser "who stated that it was an arm-length transaction."
No objection was made to any of this testimony of either witness on the ground that the witness was not speaking from his own knowledge, that his testimony was hearsay, or that the deeds would be the highest and best evidence of the sales price of such comparable property. In view of the statements of the witnesses above referred to, their testimony at least showed prima facie that the comparable sales which they considered were free and voluntary. The admissibility of their testimony as to such comparable sales was at most only doubtful, and in case of doubt as to the admissibility of evidence, it is proper for the judge to admit it and leave its weight and credit for the consideration of the jury. Albany Phosphate Co. v. Hugger Bros., 4 Ga. App. 771, 782 (6) (62 SE 533); United Motor Freight Terminals v. Driver, 75 Ga. App. 571, 572 (2) (44 SE2d 156).
Finally, the record shows that counsel for the condemnees had ample opportunity to cross-examine the witnesses who testified as complained of in these grounds, that he did in fact examine them, and questioned one of the witnesses as to the voluntariness of at least one of the sales about which he had testified on direct examination. If the sales were not in fact free and voluntary, or if the witnesses did not have sufficient knowledge of this fact to render their testimony admissible, this could have been brought out on cross-examination. This was not done. Under all these circumstances the admission of this evidence was not harmful or reversible error.
The sole purpose for which this evidence was offered was to illustrate to the jury the extent to which the rights asserted by the condemnor over the acreage sought to be condemned as an easement for flooding would affect the rights of the condemnees to use this land. The extent of the condemnor's rights to be acquired in the condemnation proceeding are wholly dependent upon the terms of the law granting it authority to condemn and upon the wording and prayers of the petition to condemn, and only such rights as are prayed for in the petition and as are reasonably necessary for the enjoyment of the easement are vested in the condemnor. Atlantic C. L. R. Co. v. Postal Telegraph-Cable Co., 120 Ga. 268, 276 (48 SE 15, 1 AC 734); Central of Ga. R. Co. v. Lawley, 33 Ga. App. 375 (2) (126 SE 273); H. G. Hastings Co. v. Southern Natural Gas Corp., 45 Ga. App. 774, 779 (5) (166 SE 56). This evidence was not admissible either to vary, modify, add to, or take from such rights, and the jury would not have been authorized to consider this evidence to the extent that it contradicted the terms of the judgment of condemnation which had been entered prior to the trial.
Furthermore, with reference to special ground 12, it appears from the record as transmitted to this court that an advertisement which apparently is the one referred to in that ground and which contains the exact language quoted in that ground was, in fact, admitted in evidence as defendants' Exhibit 1, and appears as a part of the approved brief of the evidence sent to this court. There is no merit in either of these grounds of the motion. Watkins Co. v. Seawright, 40 Ga. App. 314 (4), 315 (149 SE 389); Progressive Life Ins. Co. v. Archer, 73 Ga. App. 639, 647 (8) (37 SE2d 713).
4. Special grounds 8, 10, and 11 of the motion complain because the court excluded evidence that it is the policy of Norwega Production Credit Corporation not to make crop loans on lands subject to a flooding easement. In this connection the condemnees contend that they were members of this production credit corporation, and had in some years past borrowed money from the corporation in order to produce a crop on the land in question, but that they would be unable in the future because of this policy to obtain crop loans on their lands and would thereby be hampered in their farming operations, or even completely prevented from continuing them. Assuming that the diminution or destruction of the loan value of the land was an element affecting the market value, the evidence proffered, as shown by these grounds, was wholly insufficient as evidence of any such diminution or destruction in the loan value of the land. In order for the condemnees to show that the loan value of the land subject to the easement had in fact been decreased or destroyed, they would have to introduce evidence of a more or less universal custom of not lending money on such lands on the part of all or substantially all companies in the business of making crop loans. The testimony thus offered by the condemnees was analogous to an offer to prove value by showing a single isolated offer to buy the property, and it is well established in Georgia that value cannot be proved in this manner. Groover v. Simmons, 161 Ga. 93 (6) (129 SE 778). These grounds of the motion do not show harmful or reversible error.
5. The condemnees objected to the condemnor's introduction in evidence of the income tax returns of the condemnee, W. M. Clemones, for the years 1958 and 1959. The condemnor insists that the returns were introduced for the purpose of showing the income derived from the lease of the land in question by the condemnees. The condemnees objected on the basis that the returns show other income which might prejudice the minds of the jury. This evidence was merely cumulative of this condemnee's testimony relating to the income he had received from the farm, and as such was admissible for that purpose. Since the condemnees' objection was to the admission of the document as a whole, where part was admissible, the judge did not err in admitting it. State Farm &c. Ins. Co. v. Rogers, 105 Ga. App. 778 (125 SE2d 893), and cases therein cited.
6. The condemnees have specifically abandoned the general grounds of the motion for a new trial, and it is unnecessary to pass on any question raised by the overruling of those grounds.
Rogers, Magruder, Hoyt, Wright & Walther, Robert E. Walther, contra.
Parker, Clary & Kent, Horace T. Clary, for plaintiffs in error.
DECIDED MARCH 4, 1963 -- REHEARING DENIED MARCH 20, 1963.
Friday May 22 22:10 EDT


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