DEPARTMENT OF TRANSPORTATION v. GUNNELS, 255 Ga. 495

Per curiam. This case involves a partial taking through the exercise of eminent domain by the Department of Transportation, and centers upon the court’s charge to the jury relative to damage. We granted certiorari upon the following inquiry: Whether the jury charge as to value of the portion taken results in double recovery or is otherwise error. Dept. of Transp. v. Gunnels, 175 Ga. App. 632 (334 SE2d 197) (1985). The facts in the case are fairly simple. The Department by declaration took a strip of land from a parcel belonging to Gunnels, who appealed to a jury.

The trial court charged the jury partially as follows: “[T]he measure of damages for the part of the lot actually taken by [DOT] is the difference between the market value of the whole lot just before the taking and the market value of the whole lot immediately after the taking.

Now, that’s the measure of damage for the part that was actually taken.” Being dissatisfied with the verdict, the Department asserts that this charge erroneously allowed Gunnels, in a partial taking, to recover twice for the same thing — once as to the value of land actually taken, and secondly, as to consequential damages to the remainder. The Court of Appeals affirmed with two judges concurring specially, and one dissenting. 1. There is an inherent difficulty in the charge given by the trial court, which requires some address, notwithstanding that it appears to be based upon language appearing in State Hwy.

Bd. v. Bridges, 60 Ga. App. 240, 241 (2) (3 SE2d 907) (1939). See our holding in Elliott v. Fulton County, 220 Ga. 377, 381 (139 SE2d 312) (1964), which seems to approve the rule in Bridges. The problem is, obviously, in the use of the term “whole lot” to refer both to a parcel of property undiminished by a taking, and to the same parcel “immediately after the taking.” Logically, there is no “whole lot” after the taking, but only a remnant or remainder of what, before the condemnation, was vested in the owner.

In his special concurring opinion (concurring, as he felt bound by other authorities), Judge Carley observed as follows: “The majority correctly notes that, in a partial taking condemnation proceeding, the first element of compensation is the market value of the property actually taken. To arrive at the amount of compensation for the part actually taken, the contested charge instructed the jury to determine the difference between the market value of the ‘whole lot’ immediately before and after the taking of a part thereof.

If the market value of the ‘whole lot immediately after the taking’ is deemed to be the market value of the remainder immediately after the taking rather than the market value of the remainder as a part of the whole, it is clear that the amount arrived at by utilizing this method of calculation would result in a figure which already represents the diminution in the market value of the remainder. For example, there was testimony in the instant case that the value of appellee’s entire parcel before the taking was $33,500 and that, after the taking, one-third of that value had been lost to appellee.

Under the contested charge, the jury would have been authorized to find from this evidence that the market value of the strip of appellee’s property actually taken was approximately $11,000 which is the difference between the market value of the ‘whole lot’ immediately before and after the taking. However, a significant portion of this $11,000 lost in value would represent the amount that appellee’s remainder had been damaged as the result of the taking of the strip.

It appears that employment of the term ‘whole lot’ in the contested charge, which purports to give the measure of damages for the portion actually taken and considered as a part of the whole, is in fact easily confused with a statement of the proper measure of consequential damages to that portion which remains. ‘The proper measure of consequential damages to the remainder [property not taken] is the diminution, if any, in the market value of the remainder in its circumstances just prior to the time of the taking compared with its market value in its new circumstance just after the time of the taking. . . .’ Justice v.

Ga. Power Co., 164 Ga. App. 599, 601 (298 SE2d 579) (1982). Thus, since the jury in this partial taking case was given the instant charge and was also charged on consequential damages, there clearly was, as DOT asserts, the potential for a double recovery by the condemnee of consequential damages. The value of property is entirely different from the diminution in the value of property. The value of property is to be paid if it is taken. The diminution in value to property is to be paid if it is damaged as a result of the taking.” 175 Ga. App. at 637-38. 2.

In view of the logical impossibility of there being a “whole lot” both before and after the condemnation, we agree substantially with the views expressed by Judge Carley, and disapprove anything to the contrary found either in State Hwy. Bd. v. Bridges, supra, or Elliott v. Fulton County, supra. 3. Because the charge raises a substantial possibility that it might have been understood by the jury to authorize a double recovery, the case must be reversed, and a new trial held. Judgment reversed. All the Justices concur.