State Highway Department v. England

Bell, Presiding Judge. 1. In the trial of an appeal from an award in condemnation proceedings to acquire a part of condemnee’s tract of land as a right of way for highway purposes, the court instructed the jury: “Now, I charge you, that in estimating the value of the land being taken for public use, it is not restricted to the condition it was in, or the use to which it was applied at the time of the taking, but all of the capabilities of the property and all of the uses to which it may be legitimately applied, or for which it is adequate, are to be considered, if shown by the evidence, and not merely the condition it is in at the time of the taking and the use to which it was then applied by the owner.” There being no evidence that the property had been put to any use other than general agricultural use or had any capabilities for any other purposes, this charge was not authorized by the evidence and was harmful error. State Hwy. Dept. v. Rutland, 112 Ga. App. 792 (1) (146 SE2d 544); State Hwy. Dept. v. Whitehurst, 112 Ga. App. 877, 878 (146 SE2d 919). 2. The remaining enumeration of error, complaining of the admission of certain evidence over objection, is without merit. Judgment reversed. Jordan and Eberhardt, JJ., concur.