Department of Transportation v. Freeman

Deen, Presiding Judge,

concurring specially.

While concurring fully in the majority opinion, I would like to make the following observations:

1. In the prior appearance of this case, we ruled that the court below erred in not giving the condemnees’ requested charge “concerning the availability of a procedure under Georgia law enabling the owner of landlocked property to petition for a ‘private way’ easement of access over the lands of another. See OCGA § 44-9-40.” Freeman v. Dept. of Transp., 177 Ga. App. 51 (338 SE2d 484) (1985). The trial court was therefore bound by “the law of the case which [it] properly followed in conducting the jury trial. OCGA § 9-11-60 (h), [Cits.]” Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 138 (308 SE2d 378) (1983).

Appellant’s sole objection was to the failure of the court to give its requested charge which was a verbatim statement of the Code section. The court, however, did give appellees’ requested charge, which was a summary of the statute.

A charge need not be given in the exact language of the request to charge. Shirley v. State, 245 Ga. 616 (266 SE2d 218) (1980). “[I]f *887the charge given fairly covers the subject matter of requested charges, it is not error to fail to give the requests.” Nolen v. Murray Indus., 165 Ga. App. 785, 788 (302 SE2d 689) (1983). An examination of the charge reveals that appellant’s request to charge was fairly covered by the charge which was given by the trial court. Portions of the requested charge which were not covered in the charge were not authorized by the evidence.

A charge giving a summary of the statutory section dealing with private ways is sufficient. State Hwy. Dept. v. Davis, 129 Ga. App. 142 (199 SE2d 275) (1973). See also State Hwy. Dept. v. Howard, 119 Ga. App. 298 (167 SE2d 177) (1969). Failure to charge that a petition for a private way may be enjoined if unreasonable was not error because it was not authorized by the evidence. Proof of the reasonableness of a private way is not a prerequisite to the grant of a private way under OCGA § 44-9-40, where the property is landlocked. International Paper Realty Corp. v. Miller, 255 Ga. 676 (341 SE2d 445) (1986). In the instant case, the property was landlocked and the reasonableness of a private way did not become an issue at trial. It was therefore not error for the court to fail to charge that the petition could be enjoined if unreasonable.

2. The Department of Transportation maintained at trial that the condemnees’ property was purely a speculative investment which never was and never could be reasonably expected to be commercially developed. To rebut this contention, the condemnees offered evidence that in 1962 they had employed an architect who had drawn up plans for a commercial building on the property, and that they had discussed developing the property with a real estate developer. They also offered evidence that in 1965 the Atlanta Journal published an article announcing plans to rebuild the Brookwood Interchange. The condemnees offered this latter evidence to explain their reason for failing to develop the property as planned and to rebut the contention that the property was not developed because of an access problem with the site. The Department of Transportation objected to the development plans on the ground that they were not relevant to the value of the property as of the date of the taking, and to thie newspaper article on the ground that it was hearsay..

The admission of this evidence was proper. The testimony as to the development plans helped establish the condemnees’ position that it was possible to develop the property. See State Hwy. Dept. v. Thomas, 106 Ga. App. 849 (128 SE2d 520) (1962). Testimony about the newspaper article was given to explain the conduct of the condemnees in not following through with their development plans. Appellant now complains for the first time, on appeal, that it was not relevant as to value. “ ‘An objection to the admission or exclusion of evidence must be specifically raised at trial in order to be heard on *888appeal. [Cits.]’ ” Herron v. MARTA, 177 Ga. App. 201, 202 (338 SE2d 777) (1985).

3. An examination of the testimony of the condemnees’ two witnesses shows that, contrary to appellant’s assertion, they did not testify as to the value of the land at the time of trial, but as to its value at the time of the taking. Mr. Diaz testified that changes in land value in the area began about 1980 and that his ultimate opinion in value related only to the date of the taking, although he did compare the dramatic changes in land values from about 1980 until approximately a year before trial. The other witness testified that the market in the area was depressed in the 1970’s, but shifted to a strong market by late 1980, and that the passage of six years confirmed his opinion. He also made it clear that his opinion as to the value of the property was based on its value in December 1980. The Department of Transportation’s objections were therefore properly overruled. See Ivy Inn v. MARTA, 255 Ga. 557, 559 (340 SE2d 600) (1986); Dept. of Transp. v. Whitehead, 169 Ga. App. 226, 229 (312 SE2d 344) (1983).