State Highway Department v. Green

109 Ga. App. 743 (1964)

137 S.E.2d 397

STATE HIGHWAY DEPARTMENT v. GREEN et al.

40717.

Court of Appeals of Georgia.

Decided May 18, 1964.

Rehearing Denied June 1, 1964.

Eugene Cook, Attorney General, Richard L. Chambers, Paul Miller, E. J. Summerour, Assistant Attorneys General, J. Lundie Smith, Asa D. Kelley, Jr., Deputy Assistant Attorneys General, S. B. McCall, for plaintiff in error.

M. Dale English, Edward Parrish, contra.

EBERHARDT, Judge.

In this condemnation case, the condemnor moved for a new trial. The motion was overruled and condemnor excepts.

1. The court is authorized to charge that the jury may consider other uses to which the land being taken may be put where there is either evidence of other uses or evidence from which the jury could infer that there was reasonable probability that the land could be used for other purposes. State Hwy. Dept. v. Weldon, 107 Ga. App. 98, 99 (2) (129 SE2d 396). Here there was evidence comparing the condemnee's building with a stock barn and abattoir on adjoining property and with a warehouse. Other evidence suggested uses of the building as storage space or a warehouse. If this was not direct evidence of other possible uses of the property taken, it was certainly evidence from which the jury could infer the reasonable probability of other uses. The charge was authorized.

2. Assuming that the court expressed an opinion when commenting on evidence of comparable sales introduced by condemnor, *744 it was necessary that condemnor move for a mistrial in order to preserve its rights; it could not wait to raise the point for the first time on motion for new trial. Flanigan v. Reville, 107 Ga. App. 382, 383 (5) (130 SE2d 258); Freedman v. Housing Authority, 108 Ga. App. 418 (1a) (136 SE2d 544). Georgia Procedure & Practice, 367, § 16-13, footnote 142.

3. The remaining special grounds are elaborations of the general grounds and raise the issue of whether there is any evidence to support the verdict. A careful review of the brief of evidence shows that at least one of the condemnees testified that the "fair market value" of the land taken was in excess of the verdict. This will support the verdict as being within the range of the testimony. Derrick v. Rabun County, 107 Ga. App. 229 (129 SE2d 583).

Judgment affirmed. Bell, P. J., and Jordan, J., concur.