1. In a condemnation action evidence of the replacement cost of the property to be taken is relevant and admissible; however, in a situation where other factors must be taken into account in determining the fair value of the property, if replacement cost is the only evidence as to value of the property, there is not sufficient evidence of value or damage in the record which will justify a verdict of the jury fixing the amount the condemnee is entitled to receive, and accordingly, upon proper motion, the replacement cost testimony should be stricken from the record.
2. Where the only evidence as to the value of property damaged by public improvements is testimony estimating the replacement cost of the property, it is error for the trial court to charge the jury on consequential damages.
The State Highway Department of Georgia brought this action against 0.238 acres of land and Lillie Murray, Leila Mae Murray Scott, Lillie Bell Murray Fleming, Charlie Murray, James Rushin, Charlie Edward Rushin, Mattie Lois Rushin, Willie Rushin and Lillie Mae Rushin, individually. The action was brought by the State Highway Department of Georgia acting for and in behalf of the State of Georgia as plaintiff and condemnor for the purpose of obtaining the property in the exercise of its power of eminent domain for use in a State-aid public highway.
In the trial of the case the plaintiff relied upon the testimony of one witness who testified that he was familiar with the value of land in Marion County, and that he had appraised the land to be taken, appraising the land and improvements separately. His appraisal of the land was $125, the house thereon $1,000, and the fencing at $45, making a total appraisal of $1,171 (sic). With this, the plaintiff rested.
"I do not know the value of those houses now nor the relative position of the height of the road when completed and our land." Tony Harris, a witness for the defendants, testified that he had been doing construction work, carpentry, and bricklaying in Buena Vista and Marion County for some years and that he had checked these houses, and the cost today of building the house to be taken would be $1,500. He further testified as to the replacement costs of the other four houses varying from $1,500 to $3,000, and that they were in "fair shape." He further stated: "The fair market value would depend upon what they would be worth to the person getting them," and indicated that the fair market value of these houses would vary but would be about the same as replacement costs. On cross-examination, he stated, "Frankly, I do not know the fair market value." Another witness for the defendant testified that the fill in front of the houses not to be taken would be 11 feet at one place and 12 feet at another, and the fill would run in height from 8 to 12 feet in front of the property. The defendant Lillie Murray Fleming was then recalled for further testimony, stating that "the front part would be worthless if there was a high fill." She then testified that the houses would not be completely worthless but would be worth less. She further stated: "They would have some value but I wouldn't testify what the values were" and that "I do not know what percentage it would reduce the value."
The jury was then charged and returned a verdict for the defendants in the amount of $3,000 and costs. The plaintiff condemnor filed a motion for a new trial on the general grounds which was later amended to add the following:
Ground 1, that certain material evidence was illegally admitted by the court to the jury over the objection of the movant in that Tony Harris, witness for the defendant, testified as to the replacement costs of the houses. This was objected to as not material and it was moved that it be stricken, but the court overruled the motion and allowed the evidence to go to the jury. "This is charged to be prejudicial and hurtful to the movant.
Ground 2, that the court erred in giving the following charge to the jury: "Now, Gentlemen, the measure of damages to the remaining property or what is known as consequential damages is the difference in value of the remaining property after the taking and building of the road and the value of that remaining property before the taking and building of the road; that is, the difference in value.
"Establish first the fair market value of the land and the improvements that are taken; then establish the consequential damages to the other property, if any; and if the damages to the remaining property exceeds the benefits--add the difference to the fair market value and so return your verdict."
The movant avers that this charge was erroneous and injurious because there was no evidence sufficient to establish consequential damages in the record and no circumstances from which any amount of consequential damage could be determined by the jury.
On due hearing, the court overruled the motion for a new trial. The plaintiff having excepted to this ruling, the matter is now before this court for review.
The first ground of the amended motion for new trial contends that the evidence of a witness for the defendants, testifying as to the replacement cost of the houses, was illegally admitted by the court to the jury over the objection of the plaintiff, which objection was repeated after the defendants had closed their case. We agree that this objection is well taken, where, as here, there is no other evidence as to the value of the property. This is particularly so since the evidence adduced at the trial indicates that the five houses involved range in age from 2 to 20 years. Under these circumstances other factors, such as depreciation, must be taken into account in determining the fair market value of the property. Replacement costs alone are not enough to enable the jury to find damages for the part which is condemned. See the case of Polk v. Fulton County, 96 Ga. App. 733
, 736 (101 S. E. 2d 736), which held: "To further extend the measure of damages so as to allow replacement value alone to become the standard for compensation would be contrary to the rule followed in this and the other States." Under innumerable decisions of this court and the Supreme Court, it is elementary that the measure of damages for property taken by eminent domain is ordinarily the fair market value of the property at the time of taking. See Housing Authority of Savannah v. Savannah Iron &c. Works, 91 Ga. App. 881 (3)
(87 S. E. 2d 671). Where, as in this case, the only evidence offered to rebut the condemnor's appraisal evaluation (which, we point out, did not evaluate the damage to the property affected but not taken) concerns the replacement costs, there is not a sufficient guide given to the jury to enable them to reach an appropriate verdict. In the case of an absolutely new house, the reproduction cost might possibly be the best measure of damages. However, in the case of property which has some age, depreciation and other factors must of necessity be considered.
While we acknowledge that in Housing Authority of Savannah v. Savannah Iron &c. Works, 91 Ga. App. 881
, 888, supra, it is stated that "Reproduction cost is an accurate and direct method of measuring just and adequate compensation," citing Burke County v. Renfroe, 64 Ga. App. 395
(13 S. E. 2d 194) as authority for that proposition, the case does not hold that other factors, such as depreciation, must note be considered where necessary to determine the value of the property. Furthermore, the Burke County case involved an action for damages to the building which was not completely destroyed, and moreover the property there considered was not being taken under the exercise of the powers of eminent domain. Accordingly, neither the Housing Authority case nor the Burke County case may be construed as authority for the unlimited proposition that evidence of replacement costs, standing alone, is sufficient proof on which a jury may base a verdict awarding compensation in condemnation cases.
In this State, contrary to the rule in some other jurisdictions, the burden is on the condemnor to prove the value of the property taken and the damage to the remaining land and improvements if any. Georgia Power Co. v. Smith, 94 Ga. App. 166
(94 S. E. 2d 48); Andrus v. State Highway Dept., 93 Ga. App. 827
(93 S. E. 2d 174). "To obtain a verdict fixing that value, the taker must introduce evidence showing value." Georgia Power Co. v. Brooks, 207 Ga. 406
, 411 (62 S. E. 2d 183). In the instant case we do not feel that the condemnor has carried the burden which is thrust upon it by these cases. The only testimony which the condemnor offered was an appraisal of the land to be taken at $125, the house thereon, $1,000, and the fencing at $45. It is apparent from this testimony that the witness was testifying only as to the value he put on the property to be taken. Although there is some slight evidence in the record of consequential damage to the remaining four houses of the defendants, there was no testimony offered by the condemnor as to the consequential damage which would result to this property from the construction of a fill, variously estimated to be from 8 to 15 feet high, in front of the property. A jury could find that this fill would interfere with the ingress and egress to the remaining houses, but no testimony was given as to this aspect of the case by the condemnor, and the defendants' witnesses admitted they did not know either what the consequential damage would amount to.
For these reasons the evidence objected to and assigned as error in Ground 1 of the amended motion for new trial should have been stricken.
Ground 2 of the amended motion for new trial assigns error in the court giving a charge to the jury on consequential damages because of the fact that there was no evidence in the record to establish consequential damages and no circumstances from which any amount of consequential damage could be determined by the jury. It is well established in this State that where, as in the present case, consequential damages result to property because of a change in the road grade, the measure of damages to the abutting property is the difference between the market value of the property before and after the change. City of Atlanta v. Atlas Realty Co., 17 Ga. App. 426 (87 S. E. 698); Smith v. City of Atlanta, 22 Ga. App. 511 (96 S. E. 334); and Stansel & Rape Bros. v. City of McDonough, 50 Ga. App. 234 (177 S. E. 749). While there was in the record some vague testimony as to the effect of the fill in front of the remaining four houses not being condemned, there was no estimate at all given by either side as to the market value before and after the change so as to establish the amount of consequential damages which would result therefrom. The defendants' main witness on this point testified: "I do not know what percentage it would reduce the value" and, "they would have some value, but I wouldn't testify what the values were." Because of the lack of any evidence in the record to establish the consequential damages, it was error for the trial court to charge the jury on this matter.
For the reasons stated, the trial court erred in overruling the plaintiff's amended motion for new trial.
Judgment reversed. Felton C. J., and Nichols, J., concur.