Georgia Power Company v. Sinclair
Georgia Power Company v. Sinclair
Opinion of the Court
1. In any eminent domain case the evidence and the instructions to the jury should be such that the jury can figure separately the value of the land or interest therein which is taken and the consequential damages to the land not taken, and by balancing the latter of course against any consequential benefits and adding the two figures can return a lump-sum verdict which includes both items of depreciated value to the landowner. Code § 36-504. Where the fee in part of the tract is being taken it has been held that evidence which does not separate these two items of damage but which merely states opinion evidence as to the value of the whole tract before and after the taking is illegal testimony and cannot be considered by the appellate court in making a determination as to whether there is any evidence to support the verdict in the amount rendered. State Hwy. Dept. v. Mann, 110 Ga. App. 390 (138 SE2d 610); State Hwy. Dept. v. Weldon, 107 Ga. App. 98 (129 SE2d 396). The same method of determining total compensation applies where a lesser interest than a fee simple in part of the land is involved, and the court instructed the jury in this case, which concerns the taking of a strip easement 75 feet wide across a 130-acre farm for purposes of erecting a 230,000-volt high-tension power line, that they should determine two separate elements: first, the damage done to that part of the land involved in the 75-foot strip, and secondly the diminution in value, if any, suffered by the land of the condemnee adjoining the strip. The charge thus follows the guidelines laid out in Ga. Power Co. v. Cannon, 120 Ga. App. 721 (172 SE2d 142), where it was held that in condemning a right of way for a power line easement, consequential damage to the "remainder” means the remainder of the owner’s land not involved in the easement and evidence should not be admitted which will confuse the jury into awarding double damages. In that case the witness first testified to the depreciated value of the land taken for the easement in order to show the market value of the "taking” and then testified to the depreciated value of the whole plot of land, including the land over which the proposed easement
Judgment affirmed.
Concurring Opinion
concurring specially. I concur with what is said in the majority opinion, and, in addition, it should be pointed out as to Headnote 1 that counsel for the condemnor, after objecting to testimony which he contends had the effect of allowing double damage through addition of damages by taking the easement and damages to the entire remaining tract of land, went into this identical matter in his cross examination of the witness, James D. Hickox, as follows:
"Q. In other words, you figure this five acres in the easement is worth 18 to $20,000? A. Yes. Q. Then, was there any more damage that you figure besides the 18 to $20,000? Do you figure that’s the whole damage? A. That would be the damage to the farm. Q. Including the price of the land? A. That would do it. Q. In other words, you don’t make any difference between what should be paid for the easement and damage to the farm? You say the whole thing is $18,000? A. It damaged the farm that much. Q. Including the cost of the easement? A. That’s correct.”
Thus there was a waiver on condemnor’s part as to his objection to the testimony of the witness Hickox, wherein he contended the effect of the testimony of the witness was to give double damage.
It has long been the rule that a party who objects to evidence and then cross examines the witness about the identical evidence waives such objection. The dissenting opinion cites City of Atlanta v. Atlanta Title &c. Co., 45 Ga. App. 265, 267 (164 SE 224), as authority to the contrary, and quotes the following portion of said opinion: "the cross examination of the plaintiff’s witness was not the equivalent of such introduction . . . The verdict . . . can not be approved as a fair and legal termination of the case, in view of the important and apparently persuasive evidence which the court erroneously admitted in behalf of the plaintiff . . . The ends of justice demand another trial. . .” But, a close reading of this opinion shows that what the Court of Appeals held there was to decide that cross examination of a witness is not the equivalent of introducing a written document. Of course, that is true. We quote from the cited case more in detail as follows: "The defendant’s counsel did not introduce the document or any part of it in evidence, and the cross examination of the plaintiff’s witness was not the equivalent of such introduction . . .” This is a far cry indeed from taking issue with the principle cited to the effect that a party waives his objection to evidence when he cross examines the witness on the same point. The cases cited on this point support this proposition directly.
I am authorized to state that Judges Pannell and Deen concur in the above.
Dissenting Opinion
dissenting. In my opinion this case is controlled by our holding in Ga. Power Co. v. Cannon, 120 Ga. App. 721 (172 SE2d 142), requiring a reversal.
Dissenting Opinion
dissenting. While I disagree with the decisions, I readily concede that Georgia is the most liberal jurisdiction in the nation in approving awards and verdicts of compensation to condemnees. Bowers v. Fulton County, 221 Ga. 731
It is also contended that even though the above error be considered harmful, the appellant waived the objection by going into the matter during the cross examination of one witness. I disagree. The appellant carefully preserved the point that evidence of double damages was being illegally introduced by timely objections to this testimony by each of four witnesses. The cross examination of one of these witnesses was for the very purpose of trying to pin the witness down on what basis he was testifying to the consequential damages. Failing to get this, appellant moved again to exclude the same illegal testimony on cross examination. In my opinion, it cannot be reasonably contended that the appellant ever
As in this case, the so-called waiver by cross examination rule frequently works to place a party in an untenable position during the trial. It is held in such disrepute by the bar that in a rare manifestation of unanimity, both the Georgia Association of Plaintiffs’ Trial Attorneys and the Georgia Defense Lawyers Association would applaud its abolition.
I would reverse the judgment of the trial court on the enumerations of error discussed in Division 1 of the majority opinion.
I am authorized to state that Judge Eberhardt concurs in this dissent.
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