Owner entitled to compensation for land taken and for damage to remaining land.

- When a county, in the exercise of its corporate powers, appropriates land of an individual, and as a result the premises of the owner are rendered less valuable, he is entitled to just compensation for the land so taken, and also for the injury thus sustained. Terrell County v. York, 127 Ga. 166, 56 S.E. 309 (1906).

In condemnation proceedings the condemnor is liable not only for direct damages for the actual land taken for the public use, but in addition thereto for all consequential damages which naturally and proximately flow from the taking of the land to the remainder of the parcel or tract of land not taken as tend to diminish its market value. Georgia Power Co. v. McCrea, 46 Ga. App. 279, 167 S.E. 542 (1933).

There are only two elements of damages to be considered in a condemnation proceeding: first, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner's property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned. Simon v. Department of Transp., 245 Ga. 478, 265 S.E.2d 777 (1980).

Law allows damages to property not actually appropriated in an eminent domain proceeding as consequential damages if such damages are shown. Justice v. State Hwy. Dep't, 100 Ga. App. 794, 112 S.E.2d 307 (1959).

Remote and speculative or possible damages are not allowed. McCrea v. Georgia Power Co., 46 Ga. App. 276, 167 S.E. 540 (1933).

Remote or merely speculative or possible damages are not allowed in considering the value of the land taken nor consequential damage to the land not taken. Southern Ry. v. Miller, 94 Ga. App. 701, 96 S.E.2d 297 (1956).

The uses which may be considered in determining damages must be so reasonably probable as to have an effect on the present market value of the land; a purely imaginative or speculative value cannot be considered. State Hwy. Dep't v. Howard, 119 Ga. App. 298, 167 S.E.2d 177 (1969).

Anything that actually enhances value of land must be considered in order to meet the constitutional demand that the owner be paid, before the taking, adequate and just compensation. DOT v. Arnold, 154 Ga. App. 502, 268 S.E.2d 775 (1980).

Assessment of compensation covers all damages which result from proper construction, whether those damages were foreseen or not. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958).

It cannot be assumed in condemnation proceedings that there will be negligent construction or operation of the project so as to cause damage in excess of that which would naturally and proximately result from the construction and operation thereof. McCrea v. Georgia Power Co., 46 Ga. App. 276, 167 S.E. 540 (1933).

Contiguity of parcels does not render the aggregate a tract.

- The mere contiguity of several parcels of land belonging to one owner does not in itself render the lots in the aggregate an entire tract. Gaines v. City of Calhoun, 42 Ga. App. 89, 155 S.E. 214 (1930).

Platting and subdivision does not necessarily destroy unity of tract.

- The mere platting of a tract of land and its subdivision into vacant building lots does not necessarily destroy the oneness or unity of the entire property. Gaines v. City of Calhoun, 42 Ga. App. 89, 115 S.E. 214 (1930).

Burden of proof is upon the condemnor, where the property has been taken or damaged, to establish by a preponderance of the evidence what amount of money constitutes just and adequate compensation. State Hwy. Bd. v. Shierling, 51 Ga. App. 935, 181 S.E. 885 (1935).

Only issue before assessors or jury on appeal is amount of compensation to be paid, and neither the assessors nor a jury can determine whether the condemnor is proceeding legally; the remedy of the landowners is to apply to a court of equity to enjoin the illegal proceedings. Garden Parks v. Fulton County, 88 Ga. App. 97, 76 S.E.2d 31 (1953).

Jurors are not absolutely bound to accept as correct opinions or estimates of witnesses as to the value of property, though uncontradicted by other testimony, but have the right to consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge, throwing light upon the question, and they may, by their verdict, fix either a lower or a higher value upon the property than that stated in the opinions or estimates of the witnesses. Southern v. Cobb County, 78 Ga. App. 58, 50 S.E.2d 226 (1948).

Charge substantially in the language of this section and § 22-2-63 was not error. State Hwy. Bd. v. Coleman, 78 Ga. App. 54, 50 S.E.2d 262 (1948).

Cited in Glidden Co. v. City of Collins, 189 Ga. 656, 7 S.E.2d 266 (1940); State Hwy. Dep't v. Peavy, 77 Ga. App. 308, 48 S.E.2d 478 (1948); Housing Auth. v. McDonald, 87 Ga. App. 392, 74 S.E.2d 113 (1953); Georgia Power Co. v. Pittman, 92 Ga. App. 673, 89 S.E.2d 577 (1955); Kellett v. Fulton County, 215 Ga. 551, 111 S.E.2d 364 (1959); O.K., Inc. v. State Hwy. Dep't, 213 Ga. 666, 100 S.E.2d 906 (1957); United States of Am. v. Ivie, 163 F. Supp. 138 (N.D. Ga. 1957); Kellett v. Fulton County, 215 Ga. 551, 111 S.E.2d 364 (1959); Georgia Power Co. v. Faulk, 102 Ga. App. 141, 115 S.E.2d 733 (1960); Southwell v. State Hwy. Dep't, 104 Ga. App. 479, 122 S.E.2d 131 (1961); Fulton County v. Bailey, 107 Ga. App. 512, 130 S.E.2d 800 (1963); State Hwy. Dep't v. Kaylor, 110 Ga. App. 46, 137 S.E.2d 664 (1964); City of Jefferson v. Maddox, 116 Ga. App. 51, 156 S.E.2d 553 (1967); State Hwy. Dep't v. Cantrell, 119 Ga. App. 241, 166 S.E.2d 604 (1969); Pye v. State Hwy. Dep't, 226 Ga. 389, 175 S.E.2d 510 (1970); State Hwy. Dep't v. AMOCO, 125 Ga. App. 260, 187 S.E.2d 303 (1972); DOT v. Knight, 143 Ga. App. 748, 240 S.E.2d 90 (1977); Smith v. DeKalb County, 184 Ga. App. 628, 362 S.E.2d 435 (1987).

Market value of land for all available purposes is true measure of compensation.

- Where property is taken under power of eminent domain for a public use, its market value for all purposes for which the property is available is the true measure of the owner's compensation, the value of the property to the condemnor for the specific purpose for which the property is taken is not the basis for measuring the amount of compensation payable to the owner. State Hwy. Bd. v. Shierling, 51 Ga. App. 935, 181 S.E. 885 (1935).

Definition of market value of property.

- Market value of property is what it will bring when sold for cash by a person ready and willing to sell, but under no obligation to sell, and when bought by a person ready and willing to buy, but under no obligation to buy. Housing Auth. v. Spink, 91 Ga. App. 72, 85 S.E.2d 80 (1954).

There are three recognized techniques for determining market value: replacement cost new less depreciation, income, and comparable sales. Housing Auth. v. Southern Ry., 245 Ga. 229, 264 S.E.2d 174 (1980).

Lost profits may be used as means of awarding just and adequate compensation because the income approach necessarily takes into account what future earnings would be were the property interest not extinguished. Housing Auth. v. Southern Ry., 245 Ga. 229, 264 S.E.2d 174 (1980).

Improvements on land are proper subjects for independent valuation in consideration of the just and adequate compensation for the total property taken. DOT v. Brooks, 153 Ga. App. 386, 265 S.E.2d 610 (1980).

Existing zoning regulations can be pertinent in a condemnation proceeding. DOT v. Brooks, 153 Ga. App. 386, 265 S.E.2d 610 (1980).

Consideration of zoning changes.

- In determining value, jury may consider existing zoning and possible or probable future zoning changes which are sufficiently likely to have appreciable influence upon present market value. McDaniel Enters., Inc. v. Gwinnett County, 162 Ga. App. 419, 291 S.E.2d 738 (1982).

Privacy of land factor in fair market value.

- Privacy afforded by location of realty, like a mountaintop, riverfront or oceanfront location, can also be a factor in determining market value of such realty. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348, 299 S.E.2d 594 (1983).

A panoramic or scenic view afforded by certain realty is an element to be included in assessing value. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348, 299 S.E.2d 594 (1983).

Condemnee can recover compensation for loss of use of his property during period of construction by the county, based on its rental value during that time, if the jury first finds that a loss of use had occurred and that the condemnee had taken reasonable steps to avoid such loss. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979).

Ascertaining value of land taken by subtracting value of land remaining from value of whole land before taking is error, since this permits the consideration of consequential damages or benefits in arriving at the value of the land remaining and may thus work harm to either the condemnor or the condemnee. Fulton County v. Power, 109 Ga. App. 783, 137 S.E.2d 474 (1964).

Evidence held inadmissible to show value of condemnee's property.

- Evidence by a witness for the condemnee that an unspecified number of undescribed parcels of property in a block adjacent to that wherein was located the land sought to be condemned sold for a specified average price per square foot was inadmissible to show the value of the condemnee's property. Fulton County v. Cox, 99 Ga. App. 743, 109 S.E.2d 849 (1959).

Trial court erred in allowing testimony of the residential property's value in condemnation proceeding since the testimony provided speculative valuations based on the property's use as a commercial property at the time of the taking. Ga. Transmission Corp. v. Barron, 255 Ga. App. 645, 566 S.E.2d 363 (2002).

Evidence of factors which owner would present to prospective buyer properly admitted.

- In determining market value of land taken or damaged in an eminent domain proceeding, it is proper for the trial court to admit proof of all factors which an owner could reasonably urge upon a prospective purchaser which could tend to favorably influence the person. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348, 299 S.E.2d 594 (1983).

Evidence of property's highest and best use as convenience store properly admitted.

- Trial court did not err in denying motion to strike the testimony of condemnee's expert witness that the condemned property's highest and best use would be as a convenience store because of the property's location in relation to nearby industry and residential development, where the testimony was based on relevant facts concerning existing local population and industry. DOT v. Kanavage, 183 Ga. App. 143, 358 S.E.2d 464 (1987).

As to effect of moving old road, and establishing new, as increasing and decreasing value, see Mallory v. Morgan County, 131 Ga. 271, 62 S.E. 179 (1908).

Instructions.

- Although charge restricting jury, in determining value of property, to uses which may be lawfully made of it at time of taking as set out in zoning ordinances then in effect was incorrect, there was no harm since the condemned property was zoned for industrial use at the time of taking and appellant contended that the property's highest and best use was industrial. McDaniel Enters., Inc. v. Gwinnett County, 162 Ga. App. 419, 291 S.E.2d 738 (1982).

Instruction that the mere possibility that land might be used for a certain purpose is not enough to authorize a jury to consider the effect of such a possibility in determining the value of land. At least a reasonable probability must be shown by competent evidence to authorize consideration of such a prospective use in determining value. Elliott v. Henry County Water & Sewerage Auth., 238 Ga. App. 15, 517 S.E.2d 545 (1999).

Prospective value of land for any purpose may be considered.

- In arriving at the value of the land taken under condemnation proceedings, the value of the land, including its prospective value for any purpose, may be considered. Georgia Power Co. v. Carson, 46 Ga. App. 612, 167 S.E. 902 (1933); State Hwy. Bd. v. Coleman, 78 Ga. App. 54, 50 S.E.2d 262 (1948).

All elements and uses of the land may be taken into consideration to determine the market value of the land taken and the consequential damages to the land not taken. However, under this sort of procedure, a witness may not be permitted to testify separately as to the value of each element. Southern Ry. v. Miller, 94 Ga. App. 701, 96 S.E.2d 297 (1956).

Including value for specific use for which condemnor takes land.

- The availability of property for the specific use for which it was taken and to which it is put by the condemnor is an element to be considered in estimating the value to the owner for all purposes for which the property is available. State Hwy. Bd. v. Shierling, 51 Ga. App. 935, 181 S.E. 885 (1935).

And regardless of probability that other uses will be made of land.

- This section clearly states that the suitability of land for other uses, and not the probability that other uses will be made of the land, is the criterion for estimating the value of condemned land. Moore v. State Hwy. Dep't, 221 Ga. 392, 144 S.E.2d 747 (1965); State Hwy. Dep't v. Howard, 119 Ga. App. 298, 167 S.E.2d 177 (1969).

The test for estimating the value of land under this section is whether the land sought to be condemned could be used for other purposes, and not whether the land would be used for other purposes. Schoolcraft v. DeKalb County, 126 Ga. App. 101, 189 S.E.2d 915 (1972).

The test is whether the land is legitimately usable for other purposes, not whether such use is certain. Possible future uses will not influence the present market value of a tract unless there is a demand for such uses or they are otherwise reasonably probable. Georgia Power Co. v. Cole, 141 Ga. App. 806, 234 S.E.2d 382 (1977).

Charge on theory of reasonable probable use in a condemnation proceeding was erroneous because it allowed the jury to determine the value of the land on the date of the taking without ascribing any value to subterranean limestone deposits. Gunn v. DOT, 222 Ga. App. 684, 476 S.E.2d 46 (1996).

Use of charge allowing consideration of other uses of land.

- Absent any evidence authorizing the jury to find that property being condemned was suitable for other uses or from which it might reasonably infer its suitability for other uses, a charge that the jury might, in estimating its fair market value, consider other uses to which it might be devoted was error. State Hwy. Dep't v. Whitehurst, 109 Ga. App. 737, 137 S.E.2d 371 (1964), later appeal, 112 Ga. App. 877, 146 S.E.2d 919 (1966).

Evidence insufficient to require charge on valuation for all purposes.

- Where 3.673 acres of a 40-acre tract of land plus a small drainage area was being condemned by the state highway department, evidence that all of the 40 acres, except about two acres where the owner's home stood, was in improved pasture, and part of the land taken was a narrow strip along a road on which the dwelling house of the owner faced, does not authorize an inference that the land taken was suitable for purposes other than agricultural so as to authorize a charge based on subsection (d) of this section. State Hwy. Dep't v. Cronic, 114 Ga. App. 348, 151 S.E.2d 486 (1966).

Failure to give instruction on valuation for all purposes held erroneous.

- Where there is some testimony that the condemned land is residential property and that there is an apartment complex and commercial property in the immediate vicinity it is error to refuse to give an instruction on valuation of the property for all purposes when requested in writing. Schoolcraft v. DeKalb County, 126 Ga. App. 101, 189 S.E.2d 915 (1972).

There being evidence from which the jury would be authorized to conclude that the property in question has reasonable potential for a use other than for that to which it is presently being put, it is error to refuse to give the following written request to charge: "In the estimation of value of land taken for public uses, it is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated. The test in such cases is whether the land could be used for other purposes, not whether the land would be used for other purposes." DOT v. Katz, 169 Ga. App. 310, 312 S.E.2d 635 (1983).

There is no error in charging subsection (d) verbatim although there was no evidence of "agricultural qualities" of the property. DeKalb County v. Queen, 135 Ga. App. 307, 217 S.E.2d 624 (1975).

"Unique property" defined.

- Unique property is simply property which must be valued by something other than the fair market value standard because there is no general market for such property. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348, 299 S.E.2d 594 (1983).

Unique value is pecuniary value of certain property to its present owner, in a situation where he can find no other property equally well suited to his use, and there is no taker on the open market at the pecuniary value of the property to him. In such a case there is no market value, which presupposes a willing-buyer willing-seller situation. Housing Auth. v. Troncalli, 111 Ga. App. 515, 142 S.E.2d 93 (1965).

Since valuing property at its fair market value presupposes a willing buyer and a willing seller, properties are "unique" such that fair market value will not afford just and adequate compensation when they are not of a type generally bought or sold in the open market. Housing Auth. v. Southern Ry., 245 Ga. 229, 264 S.E.2d 174 (1980).

Private riverfront land not unique.

- Neither "privacy," which is inherent in ownership of all property, nor the fact that the condemned land was "riverfront" property, would authorize a charge on the condemned property having a value "peculiar" to the owner, or that the realty was "unique." Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 355, 299 S.E.2d 592 (1983).

Whether or not property is unique is a jury question. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314, 265 S.E.2d 10 (1980).

Whether land taken or damaged in an eminent domain proceeding is unique or peculiar is a jury question. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348, 299 S.E.2d 594 (1983).

"Unique" property is measured by variety of nonfair market methods of valuation, including the cost and income methods. Housing Auth. v. Southern Ry., 245 Ga. 229, 264 S.E.2d 174 (1980).

Recovery beyond fair market value for property of unique value.

- The measure of the condemnee's recovery is the fair market value of the property taken, and a condemnee can only recover for the value that the property has to him over and above fair market value in such cases where the evidence shows that the property had some unique and special economic, not merely sentimental, value to the condemnee alone. Fulton County v. Cox, 99 Ga. App. 743, 109 S.E.2d 849 (1959).

Where there is some evidence tending to show that the property to be taken has a unique suitability, due to its location, for the purpose to which it was being put, it is not error to instruct the jury that they are not restricted to market value in determining just and adequate compensation. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979).

Recovery of business losses.

- Business losses are recoverable as a separate item only if the property is "unique." DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314, 265 S.E.2d 10 (1980).

When a business belongs to the landowner, total destruction of the business at the location must be proven before business losses may be recovered as a separate element of compensation. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314, 265 S.E.2d 10 (1980).

When the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is not remote or speculative. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314, 265 S.E.2d 10 (1980).

The damages sustained by a business are separate and apart from the damages sustained by the real estate on which it is located. Old S. Bottle Shop, Inc. v. Department of Transp., 175 Ga. App. 295, 333 S.E.2d 127 (1985).

Instruction on unique value erroneous unless evidence supports finding of such value.

- An instruction to the jury in a condemnation case which inferentially authorizes them to award damages to the condemnee for the land taken based on the peculiar value of the land to the condemnee alone, as distinguished from its market value, generally is error where there is no evidence to authorize a finding that the land taken had any such peculiar value to the condemnee apart from its market value. State Hwy. Dep't v. Martin, 111 Ga. App. 428, 142 S.E.2d 84 (1965).

Evidence of sale of similar property admissible.

- Evidence of a sale of similar property, located near that condemned, at or near the time the condemnation proceeding was instituted, is admissible. Housing Auth. v. Spink, 91 Ga. App. 72, 85 S.E.2d 80 (1954).

On a question of the value of land sought to be condemned, it is competent to introduce evidence of sales of property similar to that in question, made at or near the time of the taking. The exact limit either of similarity or difference, or of nearness or remoteness in point of time is difficult, if not impossible, to prescribe by any arbitrary rule, but must to a large extent depend on the location and the character of the property and the circumstances of the case. Fulton County v. Cox, 99 Ga. App. 743, 109 S.E.2d 849 (1959).

Judicial determination of similarity required.

- The introduction of evidence of particular sales is permitted after such evidence has been qualified by evidence of the similarity of the comparable property with the property being condemned or taken. After the introduction of such preliminary evidence of similarity, the trial judge must determine whether the comparable property is sufficiently similar or nearly like the property being condemned, and whether the time and manner of the particular sale are truly illustrative of the value of the property being condemned. Fulton County v. Cox, 99 Ga. App. 743, 109 S.E.2d 840 (1959).

Generally, evidence of sales of property similar to that in question made at or near the time of the taking is competent evidence and may be considered to throw light on the issue of the value of the property sought to be condemned; however, the determination as to whether or not the witness testified as to comparable properties similar to that in question is within the sound discretion of the trial judge. Oglethorpe Power Corp. v. Seasholtz, 157 Ga. App. 723, 278 S.E.2d 429 (1981).

Comparability of sales upon which expert value witness bases his opinion goes to weight of testimony, not its admissibility. Merritt v. Department of Transp., 147 Ga. App. 316, 248 S.E.2d 689 (1978).

Although unaccepted offers to purchase do not constitute evidence of market value, they are admissible where offered as partial basis for opinion testimony as to value. Merritt v. Department of Transp., 147 Ga. App. 316, 248 S.E.2d 689 (1978).

Oral and not binding offers cast no light upon value.

- Oral and not binding offers are so easily made and refused in a mere passing conversation, and under circumstances involving no responsibility on either side, as to cast no light upon the question of value. Southern Ry. v. Miller, 94 Ga. App. 701, 96 S.E.2d 297 (1956).

Where an offer to purchase excludes on its face the property to be taken and thus constitutes merely an offer to purchase the remainder, and another offer, while it includes the property to be taken, appears to be nothing more than a mere oral expression of willingness to purchase, unaccompanied by any proposed terms, any indication of ability to perform, or anything else which might indicate that it was a serious and bona fide offer, such "offers" are too susceptible of fabrication to be allowed into evidence even as a partial basis of opinion testimony. Merritt v. Department of Transp., 147 Ga. App. 316, 248 S.E.2d 689 (1978).

Sales of land to condemning authorities are inadmissible as evidence in condemnation proceedings on issue of value of land sought to be condemned. Oglethorpe Power Corp. v. Seasholtz, 157 Ga. App. 723, 278 S.E.2d 429 (1981).

Relevant factors in determining consequential damage to remaining property.

- That condemned land produces items which may be sold in the market may be shown as affecting its market value. The presence or absence of water on the land may be shown in like manner. The extent of the land's productive capacity and the amount and nature of available water is relevant. If these are removed or lessened by the improvements made, that is relevant in showing consequential damage to the property remaining. State Hwy. Dep't v. Harrison, 115 Ga. App. 349, 154 S.E.2d 723, overruled on other grounds, Willis v. Hill, 116 Ga. App. 848, 159 S.E.2d 145 (1967).

Evidence of noise and other elements allowed in determining consequential damages.

- If shown to affect adversely the value and use of the condemnee's remaining property, evidence of noise and other elements may be taken into consideration by the jury in determining consequential damages. State Hwy. Dep't v. Augusta Dist. of N. Ga. Conference of Methodist Church, 115 Ga. App. 162, 154 S.E.2d 29 (1967).

It is error to admit evidence of diminution in value of adjoining property without evidence of fair market value before the condemnation, for such evidence is a mere conclusion of the witness without foundations of fact for the consideration of the jury. State Hwy. Bd. v. Coleman, 78 Ga. App. 54, 50 S.E.2d 262 (1948).

Damage to one contiguous parcel determinable without reference to others.

- Where adjoining or contiguous parcels of land belonging to the same owner are put to separate and distinct uses, and do not together constitute one entire tract, damages to one of the parcels, as a result of the performance of public work in the neighborhood, is determinable without reference to the effect of the work upon the adjoining land. Gaines v. City of Calhoun, 42 Ga. App. 89, 155 S.E. 214 (1930).

Damage to portion of tract balanced against benefit to whole.

- Where a tract of land having a value and a peculiar utility as an entirety is affected by public work, the owner of the land, for the purpose of recovering damages resulting from the performance of the work, cannot sever from the entire tract a portion of it which has been peculiarly damaged and recover damages without reference to the benefits accruing to the entire tract by virtue of the performance of the work. Gaines v. City of Calhoun, 42 Ga. App. 89, 155 S.E. 214 (1930).

Damages and judgment bar recovery of consequential damages except those resulting from negligent construction.

- Since this section and § 22-2-63 plainly provide that the appraisers in proceedings to condemn private property for public purposes shall assess actual damages for the property taken and consequential damages to the property not taken, an award of damages and judgment of condemnation bar recovery of consequential damages except such as result from negligent and improper construction. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958).

Proper construction not grounds for damages to remainder of property.

- Construction that is done with due care and is proper is not grounds for recovery for damages to the remainder of the property of the condemnee. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958).

Mistaken theory that construction would improve, not damage, remaining property.

- Where, due to a mistake of fact unmixed with negligence, the condemnation proceeding for a public road was conducted throughout upon the theory that the road would be paved at approximately grade level, thus improving rather than damaging the remaining abutting property, and there was nothing to indicate that a fill of from 25 to 40 feet would be made in front of the remaining property which would damage it in the amount of approximately $20,000.00, a petition in equity, alleging these facts and alleging that the mistake prevented the owners from proving this consequential damage, alleged a cause of action to set aside the award and the judgment of condemnation and to recover the full damages. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958).

Valuation of adjacent land taken for bridge and roads.

- It is proper, in order to arrive at just and adequate compensation in determining the value of adjacent land taken for the bridge and roads, that its prospective value as a bridge site and its present value as a ferry site may be taken into the calculation. Mitchell County v. Hudspeth, 151 Ga. 767, 108 S.E. 305 (1921).

Where land is taken for a public highway and bridge over a stream, the owners are not entitled to have the diminution or destruction of the profits of their ferry, due to the erection of the bridge, considered in determining the value of the property taken by the state for its highway and the bridge, when the franchise of the owners to operate the ferry is not exclusive. State Hwy. Bd. v. Willcox, 168 Ga. 883, 149 S.E. 182 (1929).

Condemnor's testimony, standing alone, held inadmissible on question of consequential damages.

- Where a limited access highway is condemned by the State, which highway cuts off several acres from the remainder of the land of the condemnee leaving those several acres without any access thereto, testimony offered by the condemnor that with access there would be no damage to the isolated land, standing alone, is inadmissible and without probative value on the question of consequential damages to those several acres without access. State Hwy. Dep't v. Howard, 124 Ga. App. 76, 183 S.E.2d 26 (1971).

Evidence admissible as to effect of condemnation on landowner's business.

- In action for value of property taken by the Department of Transportation, evidence which was admissible to reflect how the condemnation had adversely affected landowner's business had probative value and was admissible for consideration by the jury. DOT v. Delta Mach. Prods. Co., 157 Ga. App. 423, 278 S.E.2d 73 (1981).

Evidence insufficient to require charge on consequential benefits.

- See Garden Parks v. Fulton County, 88 Ga. App. 97, 76 S.E.2d 31 (1953).

Measure of damages for property taken is pecuniary loss to owner.

- The measure of damages for property taken by the right of eminent domain, being compensatory in its nature, is the pecuniary loss sustained by the owner, taking into consideration all relevant factors; ordinarily this loss is represented by the fair market value of the property interest taken, but it may be fair and reasonable value of the property taken if in fact the market value would not coincide with the actual value thereof. 1958-59 Op. Att'y Gen. p. 271.

And is ordinarily measured by market value.

- Ordinarily, when an entire parcel of property is taken, or an entire leasehold interest is taken, the measure of the damages is the "market value" of the land or leasehold interest as the case might be; market value has been defined as the price which may be paid by one wishing but not required to buy, to one wishing but not required to sell. 1958-59 Op. Att'y Gen. p. 271.

Assessment of consequential damages.

- In assessing consequential damages, the difference would lie in the valuation of the land which remains after condemnation, as compared with the value of that fragment of land before the condemnation was commenced; in considering this "damage," the assessors or jury would be bound to deduct from the whole damage, any increase which might result from the improvement respecting the sales value or market value of the tract not taken. 1958-59 Op. Att'y Gen. p. 273.

Payment of taxes on land taken by eminent domain.

- The payment of city or county taxes is not a proper element of damages in a condemnation case; the payment of property taxes is a responsibility of the landowner only so long as he, in fact, owns the property. The property owner or condemnee would be responsible for payment of taxes up to the date of taking; after that time, the responsibility for the payment of these taxes would lie upon the condemning body, if in fact that body is an entity which would have the responsibility for payment of these taxes. 1969 Op. Att'y Gen. No. 69-494.

Cost of moving personal property not an element of damage.

- The cost of moving personal property from real estate which is taken for public purposes cannot be considered as an element of damage, as such; however, the cost of removal of either fixtures, buildings, or personalty, especially when used for business purposes, may be considered as one of the factors entering into a determination of the value of the real estate to the condemnee from whom it is taken. 1958-59 Op. Att'y Gen. p. 271.

But may be illustrative of damage done by taking.

- The cost of moving personal property may in many instances, be evidential as to, or illustrative of, the damage done to such personal property by the taking; such damage must be paid by the authority which so takes it for public purposes. 1958-59 Op. Att'y Gen. p. 276.

Where area taken for right of way intersects building on tract involved, i.e., a portion of the building lies on land which is taken, and a portion of the building lies on land which is not taken, that portion of the building which extends upon the right of way may be severed if it is practicable to do so without destruction of the building; if severance would result in destruction, then the measure of damage to the building is its full value. 1958-59 Op. Att'y Gen. p. 273.

In circumstances where a condemnation causes the intersection of a building by the line drawn between the land taken and the land not taken, where it is impossible to sever the building and the whole building would be destroyed, the value of the land without the building taken would be charged against the condemnor; the true market value of the remaining portion of the condemnee's land without the building, of course, it being destroyed, would be compared with the value of that tract before taking. 1958-59 Op. Att'y Gen. p. 273.

Expense of removing facilities from railroad right-of-way.

- There is no reason why the State Highway Department (now Department of Transportation) may not bear the expense (or that part which is not borne by the railroad or the United States government) of the temporary and permanent removal of facilities located on a railroad right of way. 1957 Op. Att'y Gen. p. 132.

No distinction can be drawn, as to the obligation to pay the cost of removal of facilities on a right of way, between temporary relocations and permanent relocations. 1957 Op. Att'y Gen. p. 132.

Powder company which is forced to move the location of its place of business because a highway is constructed too near the place of business is entitled to compensation for certain moving expenses. 1957 Op. Att'y Gen. p. 137.

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, § 151. 27 Am. Jur. 2d, Eminent Domain, §§ 266-296, 310-320, 357-374, 419-442.

C.J.S.

- 25A C.J.S., Damages, §§ 2, 4. 29A C.J.S., Eminent Domain, §§ 110-185, 271-275. 30 C.J.S., Eminent Domain, §§ 276-278.

ALR.

- Profits derived from business conducted on property taken by eminent domain as evidence of market value, 7 A.L.R. 163.

Right under constitutional provision against taking or damaging, to recover in other than an eminent domain proceeding, for consequential damages to property no part of which is taken, 20 A.L.R. 516.

Limitation applicable to action for consequential damage as result of taking or damaging of property for public use, 30 A.L.R. 1190, 139 A.L.R. 1288.

Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98.

Measure of damages or compensation where property is taken to widen street, 64 A.L.R. 1513.

Income as an element in determining value of property taken in eminent domain, 65 A.L.R. 455.

Measure and items of compensation or damages for flooding property under the right of eminent domain, 106 A.L.R. 955.

Right of property owner to compensation for diversion of traffic by relocation or rerouting of highway, 118 A.L.R. 921.

Elements and measure of compensation for power lines or other wire lines over private property, 124 A.L.R. 407.

Special value or adaptability of property for purpose for which it is taken, as an element of, or matter for consideration in fixing, damages in condemnation proceedings, 124 A.L.R. 910.

Distinction between income or profits from business on land and income or profits from use of land, as affecting admissibility of evidence in that regard on question of damages in eminent domain, 134 A.L.R. 1125.

Deduction of benefits in determining compensation or damages in eminent domain, 145 A.L.R. 7.

Increment to value, from project for which land is condemned, as a factor in fixing compensation, 147 A.L.R. 66.

Frustration of contractual rights as basis of claim for compensation where another's real property is taken in exercise of eminent domain, 152 A.L.R. 307.

Price at which one whose land is taken or damaged under power of eminent domain has sold, contracted to sell, or optioned land in question to third person as evidence of its market value in condemnation proceeding or related action for damages, 155 A.L.R. 262.

What physical construction amounts to a change of grade within statute relating to award of damages, 156 A.L.R. 416.

Determination in eminent domain proceedings of market value of land as affected by mineral deposits or similar conditions, 156 A.L.R. 1416.

Are different estates or interests in real property taken under eminent domain to be valued separately, or entire property to be valued as a unit and the amount apportioned among separate interests, 166 A.L.R. 1211.

Eminent domain: cost of repairs and improvements on property taken, as evidence of its value, 172 A.L.R. 236.

Eminent domain: valuation of land and improvements and fixtures thereon separately or as unit, 1 A.L.R.2d 878.

Elements and measure of lessee's compensation for taking or damaging leasehold in eminent domain, 3 A.L.R.2d 286.

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Admissibility in condemnation proceedings of opinion evidence as to probable profits derivable from land condemned if devoted to particular agricultural purposes, 16 A.L.R.2d 1113.

Abutting owner's right to damages or other relief for loss of access because of limited-access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.

Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use, 29 A.L.R.5th 36.

Counsel's use, in trial of condemnation proceeding, of chart, diagram or blackboard, not introduced in evidence, relating to damages or the value of the property condemned, 80 A.L.R.2d 1270.

Admissibility on issue of value of real property of evidence of sale price of other real property, 85 A.L.R.2d 110.

Bad reputation of condemned property derived from its illegal use for gambling, prostitution, or the like, as factor decreasing compensation or damages, 87 A.L.R.2d 1156.

Changes in purchasing power of money as affecting compensation in eminent domain proceedings, 92 A.L.R.2d 772.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901.

Eminent domain: deduction of benefits in determining compensation or damages in proceedings involving opening, widening, or otherwise altering highway, 13 A.L.R.3d 1149.

Propriety and effect, in eminent domain proceeding, of argument or evidence as to landowner's unwillingness to sell property, 17 A.L.R.3d 1449.

Propriety and effect of argument or evidence as to financial status of parties in eminent domain proceeding, 21 A.L.R.3d 936.

Existence of restrictive covenant as element in fixing value of property condemned, 22 A.L.R.3d 961.

Eminent domain: admissibility, on issue of value of condemned real property, of rental value of other real property, 23 A.L.R.3d 724.

Admissibility of evidence of proposed or possible subdivision or platting of condemned land on issue of value in eminent domain proceedings, 26 A.L.R.3d 780.

Measure of damages for condemnation of cemetery lands, 42 A.L.R.3d 1314.

Traffic noise and vibration from highway as element of damages in eminent domain, 51 A.L.R.3d 860.

Good will or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking, 59 A.L.R.3d 488.

Eminent domain: consideration of fact that landowner's remaining land will be subject to special assessment in fixing severance damages, 59 A.L.R.3d 534.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Assemblage or plottage as factor affecting value in eminent domain proceedings, 8 A.L.R.4th 1202.

Eminent domain: measure and elements of lessee's compensation for condemnor's taking or damaging of leasehold, 17 A.L.R.4th 337.

Unaccepted offer for purchase of real property as evidence of value, 25 A.L.R.4th 571.

Unaccepted offer to sell or buy comparable real property as evidence of value of property in issue, 25 A.L.R.4th 615.

Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.

Unaccepted offer to sell or listing of real property as evidence of its value, 25 A.L.R.4th 983.

Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213.

Eminent domain: compensability of loss of visibility of owner's property, 7 A.L.R.5th 113.