Mason v. Department of Transportation

159 Ga. App. 471 (1981)

283 S.E.2d 690

MASON et al. v. DEPARTMENT OF TRANSPORTATION.

62331.

Court of Appeals of Georgia.

Decided September 9, 1981.

Jack S. Davidson, for appellants.

Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, Don A. Langham, First Assistant Attorney General, Marion O. Gordon, Senior Assistant Attorney General, William C. Joy, Assistant Attorney General, Millard B. Shepherd, Special Assistant Attorney General, for appellee.

BANKE, Judge.

The Department of Transportation took .036 acre of land owned by the condemnee, as well as certain temporary construction easements, for use in widening an existing highway. The department already owned the necessary right-of-way for the widening but needed the additional .036 acre to extend a drain pipe. Following a jury verdict awarding damages in the amount of $300, the condemnee appeals, contending that the court erred in striking the testimony of his appraiser to the effect that the widening of the highway had diminished the value of the remainder. Held:

The consequential damages which are recoverable in a condemnation proceeding are those damages which "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..." McArthur v. State Hwy. Dept., 85 Ga. App. 500 (69 SE2d 781) (1952). (Emphasis supplied.) See also Simon v. D.O.T., 245 Ga. 478 (265 SE2d 777) (1980). The testimony at issue in this case showed that the dimunition in value of the remainder resulted not from the taking of the .036 acre to extend the drain pipe but from the use of the existing right-of-way which the department already owned. Consequently, the testimony concerned a matter not relevant to this condemnation proceeding, and the trial court did not err in striking it.

Judgment affirmed. Deen, P. J., and Carley, J., concur.