dissenting. I think that the court erred in charging the jury the charge dealt with in the second division of the opinion.
It is not the law of this case that the measure of damages is the value to the owner of the property taken rather than fair market value. In the first appearance of this case before the second division of this court, the question of what is the correct measure of damages in such a case was not raised. My construction of the opinion by the second division is that it did not purport to pass on the question of what was the correct measure of damages but, if it did do so, the ruling is obiter because it had no such question to pass on. Paragraph 23 of the petition alleges: “The market value of plaintiff’s leasehold interest for the term remaining after the entry and taking by defendant, less the rentals contracted to be paid, is $71,157.49. Plaintiff sues for the recovery thereof.” The defendant demurred specially to certain items alleged in the petition on the ground that they did not enter into or illustrate the fair market value of the leasehold interest taken by defendant. The, rulings on these special demurrers were that such items did illustrate, or could be found by the jury to illustrate, the fair market value of the property involved. In no way was the question as to what is the correct measure of damages raised. The majority opinion is silent on this question.
I dissent from the ruling that the value to the owner could be found to be the measure of damages in this case. I think that generally the measure of damages in such cases is the fair market value unless the facts of a particular case take it out of the general rule, and I do not think we have such a case here. See dissent in Housing Authority of Augusta v. Holloway, 63 Ga. App. 485, supra, p. 487, and cases cited therein.
The two rules of the measure of damages charged in this case are inconsistent and confusing. The question of what is the correct measure of damages is one of law and not of fact, and there is only one correct measure in this case.
*891I can see no foundation in fact or law for the statement by the majority that this case was tried on any other theory than that market value as therein defined was the measure of damages. The fact that this court held that various matters were relevant to show market value and the introduction in.evidence of such matters and the absence of an estimate or opinion of the fair market value of the leasehold appropriated would not have the effect of changing the meaning of the words “market value” from the usual meaning, and the plaintiff, in error is not estopped to except to the charges under review on the ground that it has taken a position in the trial inconsistent with its exception to the charges.
It is true that the plaintiff in error does not explicitly make the contention that the court was confined to market value as the measure of damages, for the reason that the pleadings so demanded regardless of what the law is on the subject. In spite of that fact, it could properly except to the charges as being contradictory and confusing without basing the exception on the contention that the pleadings required a charge that market value was the correct measure of damages.
Carlisle, </., concurs in this dissent.