Opinion
36731.
DECIDED JUNE 27, 1957.
Condemnation. Before Judge Gray. Tift Superior Court. March 4, 1957.
Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, Maxwell A. Hines, for plaintiff in error.
Seymour S. Owens, contra.
1. It is not a good assignment of error on a portion of the judge's charge which states a correct principle of law applicable to the case, that some other correct and appropriate instruction was not given.
2. The verdict was within the range of the evidence, was not excessive, and being authorized by the evidence, the trial court did not err in overruling the general grounds or special ground 2.
DECIDED JUNE 27, 1957.
On March 28, 1956, by an original petition in rem the State Highway Department of Georgia brought proceedings against Mrs. Catherine Tift Porter, to condemn 8.79 acres of land in Tift County belonging to Mrs. Porter for use as a right-of-way in establishing a limited-access highway in accordance with the provisions of Code (Ann.) § 95-1701 (a) et seq. On May 5, the court filed an order approving service of process and the selection of assessors, as provided by law. On May 18, the assessors filed their award. On May 22, the State Highway Department, as condemnor, filed its appeal from the award to a jury as provided by law; and thereafter, on May 24, 1956, Mrs. Porter, as condemnee, also filed her appeal from the award. On May 31, 1956, the trial court entered a judgment condemning the described land in fee simple and provided that the condemnor, upon payment of the award into the registry of the court, be vested with an unincumbered fee-simple title to the lands described in the petition. The State Highway Department caused such sum to be paid into the registry of the court. On September 28 and October 4, Mrs. Porter amended her answer. In her answer as finally amended Mrs. Porter alleges that she does not deny the right of the State Highway Department to condemn the property, but that she has not yet been offered just and adequate compensation for the perpetual right-of-way over her land; that the actual value of the land sought to be taken for the right-of-way is at least $17,580; that the consequential damages to the remaining 21.21 acres of land owned by her are at least $10,605; and, that there will be no consequential benefits to the remaining portion of her lands by the condemnation of the 8.79 acres of her land for use as a right-of-way. She further alleges that the actual value of the 30-foot easement sought to be condemned for a drainage ditch is at least $1,500 per acre.
The jury returned a verdict for Mrs. Porter for $10,548 for the 8.79 acres of land condemned, an additional $10,500 as consequential damages to her remaining lands, and an additional sum of $500 for the easement taken for the drainage ditch, making a total award of $21,548.
The State Highway Department's motion for a new trial, based on the usual general grounds and two special grounds, was denied and error is assigned here on that judgment.
In special ground 1 of its motion for a new trial, the State Highway Department assigns error on the following charge: "I charge you, gentlemen of the jury, that a limited-access highway is a highway, road or street for through traffic and over, from or to which owners or occupants of abutting land, or other persons have no right or easement or only a limited right or easement of access, light, air or view by reason of the fact that their property abuts upon such limited-access highway or for any other reason; I also charge you that a limited-access highway may be so designated as to regulate, restrict or prohibit access thereto so as to best serve the traffic for which such facility is intended. No person shall have any right of ingress or egress from or passage across any limited-access highway to or from abutting lands except at the designated points to which access may be permitted, and under such arrangements and conditions as may be specified from time to time."
The vice attributed to this charge is that the trial court failed to charge as follows: "A local service road is any road or street, whether or not existing at the time of the designation of a limited-access highway or thereafter established, which serves the owner or occupant of any land or improvements abutting a limited-access highway and which gives a means of ingress to and egress from such lands or improvements." The language of the charge alleged to be erroneous is taken directly from Code (Ann.) §§ 95-1701a, 95-1703a.
"It is not a good assignment of error on a portion of the judge's charge which states a correct principle of law applicable to the case, that some other correct and appropriate instruction was not given. Harvey v. State, 121 Ga. 590 (2) ( 49 S.E. 674); Howell v. State, 150 Ga. 67 (3a) ( 102 S.E. 439)." Grant v. State, 152 Ga. 234 (2) ( 54 S.E. 145); Powers v. State, 138 Ga. 624 (4) ( 75 S.E. 651); Hicks v. State, 146 Ga. 221 (6) ( 91 S.E. 57); Holston National Bank v. Howard, 148 Ga. 767 ( 98 S.E. 269); Johnson v. State, 150 Ga. 67 (3a) ( 102 S.E. 439); Grant v. State, 152 Ga. 252 (1) ( 109 S.E. 502). This ground is, consequently, without merit.
2. In special ground 2, error is assigned on the ground that the award of compensation and damages made by the jury is so excessive as to indicate passion or prejudice on the part of the jury. Taking this ground together with the general grounds of the motion for new trial, we need only say that the verdict is within the range of the pleadings and the evidence and is consequently authorized. The verdict has the approval of the trial judge and since every presumption will be indulged in favor of jury verdicts, we do not think the trial court abused its discretion in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.