Cross references. - Taking of private property for public purposes generally, Ga. Const. 1983, Art. I, Sec. III, Para. II, and Art III, Sec. VI, Para II.

Prohibition against abridgement of right of eminent domain, Ga. Const. 1983, Art. III, Sec. VI, Para. III.

Exercise of right of eminent domain for community redevelopment work, Ga. Const. 1983, Art. IX, Sec. II, Para. VII.

Powers of counties and municipalities to exercise right of eminent domain, Ga. Const. 1983, Art. IX, Sec. II, Para. V.

Allocation of award upon exercise of power of eminent domain affecting condominiums, § 44-3-97 .

Authority of railroad companies to exercise power of eminent domain, §§ 46-8-121 , 46-8-124 .

Taxation of special franchises, § 48-5-420 et seq.

Law reviews. - For article discussing eminent domain procedure in this country, and advocating reforms focusing on a unified method for condemnation, see 11 Mercer L. Rev. 245 (1960). For article, "Eminent Domain, Police Power and Urban Renewal: Compensation for Interim Depreciation in Land Values," see 7 Ga. L. Rev. 226 (1972). For article discussing extraterritorial condemnation of property by municipalities, see 12 Ga. L. Rev. 1 (1977). For article discussing developments in the law of eminent domain in 1976 to 1977, see 29 Mercer L. Rev. 219 (1977). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article surveying Georgia cases in the area of local government law from June 1979 through May 1980, see 32 Mercer L. Rev. 137 (1980). For article, "A Critical Review of the Law of Business Loss Claims in Georgia Eminent Domain Jurisprudence," see 51 Mercer L. Rev. 11 (1999). For note on computation of compensation for condemned lands where value is enhanced by announcement of proposed improvement, see 15 Mercer L. Rev. 488 (1964). For note, "A Study of the Development and Current Status in Georgia of Inverse Condemnation Suits by a Landowner for Taking by Aerial Flights," see 2 Ga. St. B.J. 232 (1965).

JUDICIAL DECISIONS

Eminent domain statutes to be strictly construed. - Because statutes delegating the power of eminent domain are in derogation of the property rights of the citizens, such statutes are strictly construed. Harwell v. Georgia Power Co., 246 Ga. 203 , 269 S.E.2d 464 (1980).

Attorney fees are not available in condemnation actions. DOT v. Worley, 244 Ga. 783 , 263 S.E.2d 436 (1979).

RESEARCH REFERENCES

Condemnation of Rural Property for Highway Purposes, 8 Am. Jur. Trials 57.

Condemnation of Urban Property, 11 Am. Jur. Trials 189.

Condemnation of Easements, 22 Am. Jur. Trials 743.

Landowner's Evidence of Market Value in Eminent Domain Proceeding, 60 Am. Jur. Trials 447.

Condemnation of Leasehold Interests, 96 Am. Jur. Trials 211.

ALR. - Power to establish building line along street, 28 A.L.R. 314 .

Construction and application of rule requiring public use for which property is condemned to be "more necessary" or "higher use" than public use to which property is already appropriated - state takings, 49 A.L.R.5th 769.

CHAPTER 1 GENERAL PROVISIONS

Sec.

JUDICIAL DECISIONS

Land value and consequential damages are matters of opinion. - Where the question is the value of the land taken and condemned and the amount of consequential damages to be assessed against the condemnor for the remaining land, these matters are from the necessity of the case matters of opinion. Derrick v. Rabun County, 107 Ga. App. 229 , 129 S.E.2d 583 (1963).

Cited in Elberton S. Ry. v. State Hwy. Dep't, 211 Ga. 838 , 89 S.E.2d 645 (1955); Fountain v. Metropolitan Atlanta Rapid Transit Auth., 179 Ga. App. 318 , 346 S.E.2d 363 (1986).

RESEARCH REFERENCES

Eminent Domain: Lessee's Recovery of Compensation for Taking of Leasehold Interest, 56 POF3d 419.

Eminent Domain: Proof of Lack of Reasonable Necessity for Taking of Property, 71 POF3d 97.

ALR. - State power of eminent domain over property of United States, 4 A.L.R. 548 .

Depreciation of property by the erection of a hospital by a municipality as a "taking" or "damaging" within the constitutional provision, 4 A.L.R. 1012 .

Eminent domain: power to condemn against particular use of property, 8 A.L.R. 594 .

Exercise of eminent domain for purpose of irrigating land of private owner, 9 A.L.R. 583 , 27 A.L.R. 519 .

Loss of right to contest assessment in proceeding for street or sewer improvement by waiver, estoppel, or the like, 9 A.L.R. 634 .

Loss of right to contest assessment in drainage proceeding by waiver, estoppel, or the like, 9 A.L.R. 842 .

Right of owner of fee burdened with easement in nature of street, private or public, to compensation on condemnation of property for public street, 17 A.L.R. 1249 .

Street forming boundary of city as urban or rural, as affecting right of abutting owners to compensation for use by public utilities, 30 A.L.R. 746 .

Right to compensation for improvements made under authority, or color thereof, by body having power of eminent domain, before exercise of that power, 34 A.L.R. 1082 .

Furnishing electricity to public as public use or purpose for which power of eminent domain may be exercised, 44 A.L.R. 735 .

Right of abutting owner to compensation for interference with access by bridge or other structure in public street or highway, 45 A.L.R. 534 .

Depreciation of property by location of school as taking or damaging within constitutional provision, 48 A.L.R. 1031 .

Constitutionality of statute authorizing hauling or floating logs or other material through private property, 51 A.L.R. 1199 .

Eminent domain: combination of public and private uses or purposes, 53 A.L.R. 9 .

Right to compensation in eminent domain on basis of entire extent of property or complete use ultimately contemplated in excess of present requirements, 75 A.L.R. 855 .

Power of eminent domain conferred upon municipality as authorizing taking fee or merely easement, 79 A.L.R. 515 .

Exercise of power of eminent domain for purposes of logging road or logging railroad, 86 A.L.R. 552 .

Right of owner of property not abutting on closed section to compensation for vacation of street or highway, 93 A.L.R. 639 .

Right of owner of dominant estate to have compensation for taking of easement by eminent domain determined with reference to land and improvements held in the dominant estate, 98 A.L.R. 640 .

Exercise of eminent domain for purpose of increasing right or interest which petitioner already owns or relieving the property or petitioner of some burden or obligation in respect of property, 108 A.L.R. 1522 .

Right of municipality or other governmental body seeking to acquire public utility to proceed in the manner prescribed generally for exercise of eminent domain, 109 A.L.R. 384 .

Right to take property under eminent domain as affected by fact that property is already devoted to cemetery purposes, 109 A.L.R. 1502 .

Injunction against exercise of power of eminent domain, 133 A.L.R. 11 , 93 A.L.R.2d 465.

Compensation for property confiscated or requisitioned during war, 149 A.L.R. 1451 .

General governmental policy (distinguished from specific project) as affecting compensation allowable in eminent domain, 167 A.L.R. 502 .

Condemnation of materials for highway or other public or quasi-public works, 172 A.L.R. 131 .

Condemnation of land by public authority, to provide hunting and fishing, 172 A.L.R. 174 .

Injunction against exercise of power of eminent domain, 93 A.L.R.2d 465.

Attorney's fees as within statute imposing upon condemner liability for "expenses," "costs," and the like, 26 A.L.R.2d 1295.

Spur track and the like as constituting a use for which railroad can validly exercise right of eminent domain, 35 A.L.R.2d 1326.

Condemnor's acquisition of, or right to, minerals under land taken in eminent domain, 36 A.L.R.2d 1424.

Liability of public utility to abutting owner for destruction or injury of trees in or near highway or street, 64 A.L.R.2d 866.

Right to view by jury in condemnation proceedings, 77 A.L.R.2d 548.

Zoning as a factor in determination of damages in eminent domain, 9 A.L.R.3d 291.

Eminent domain: charging landowner with rent or use value of land where he remains in possession after condemnation, 20 A.L.R.3d 1164.

Propriety of court's consideration of ecological effects of proposed project in determining right of condemnation, 47 A.L.R.3d 1267.

Plotting or planning in anticipation of improvement as taking or damaging of property affected, 49 A.L.R.3d 127.

What constitutes abandonment of eminent domain proceeding so as to charge condemnor with liability for condemnee's expenses or the like, 68 A.L.R.3d 610.

Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542.

Inverse condemnation state court class actions, 49 A.L.R.4th 618.

22-1-1. Definitions.

As used in this title, the term:

  1. "Blighted property," "blighted," or "blight" means any urbanized or developed property which:
    1. Presents two or more of the following conditions:
      1. Uninhabitable, unsafe, or abandoned structures;
      2. Inadequate provisions for ventilation, light, air, or sanitation;
      3. An imminent harm to life or other property caused by fire, flood, hurricane, tornado, earthquake, storm, or other natural catastrophe respecting which the Governor has declared a state of emergency under state law or has certified the need for disaster assistance under federal law; provided, however, that this division shall not apply to property unless the relevant public agency has given notice in writing to the property owner regarding specific harm caused by the property and the owner has failed to take reasonable measures to remedy the harm;
      4. A site identified by the federal Environmental Protection Agency as a Superfund site pursuant to 42 U.S.C. Section 9601, et seq., or environmental contamination to an extent that requires remedial investigation or a feasability study;
      5. Repeated illegal activity on the individual property of which the property owner knew or should have known; or
      6. The maintenance of the property is below state, county, or municipal codes for at least one year after notice of the code violation; and
    2. Is conducive to ill health, transmission of disease, infant mortality, or crime in the immediate proximity of the property.

      Property shall not be deemed blighted because of esthetic conditions.

  2. "Common carrier" means any carrier required by law to convey passengers or freight without refusal if the approved fare or charge is paid.
  3. "Condemnor" or "condemning authority" means:
    1. The State of Georgia or any branch or any department, board, commission, agency, or authority of the executive branch of the government of the State of Georgia;
    2. Any county or municipality of the State of Georgia;
    3. Any housing authority with approval of the governing authority of the city or county as provided in Code Section 8-3-31.1;
    4. Any other political subdivision of the State of Georgia which possesses the power of eminent domain; and
    5. All public utilities that possess the right or power of eminent domain.
  4. "Economic development" means any economic activity to increase tax revenue, tax base, or employment or improve general economic health, when the activity does not result in:
    1. Transfer of land to public ownership;
    2. Transfer of property to a private entity that is a public utility;
    3. Lease of property to private entities that occupy an incidental area within a public project; or
    4. The remedy of blight.
  5. "Each person with a legal claim" means the owner of the property or of any remainder, reversion, mortgage, lease, security deed, or other claim in the property.
  6. "Interest" means any title or nontitle interest other than fee simple title.
  7. "Persons" means individuals, partnerships, associations, and corporations, domestic or foreign.
  8. "Property" means fee simple title.
    1. "Public use" means:
      1. The possession, occupation, or use of the land by the general public or by state or local governmental entities;
      2. The use of land for the creation or functioning of public utilities;
      3. The opening of roads, the construction of defenses, or the providing of channels of trade or travel;
      4. The acquisition of property where title is clouded due to the inability to identify or locate all owners of the property;
      5. The acquisition of property where unanimous consent is received from each person with a legal claim that has been identified and found; or
      6. The remedy of blight.
    2. The public benefit of economic development shall not constitute a public use.
  9. "Public utility" means any publicly, privately, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, power, electricity, light, heat, gas, oil products, water, steam, clay, waste, storm water not connected with highway drainage, and other similar services and commodities, including publicly owned fire and police and traffic signals and street lighting systems, which directly or indirectly serve the public. This term also means a person, municipal corporation, county, state agency, or public authority which owns or manages a utility as defined in this paragraph. This term shall also include common carriers and railroads.

    (Ga. L. 1929, p. 219, § 3; Code 1933, § 36-201; Ga. L. 2006, p. 39, § 3/HB 1313; Ga. L. 2017, p. 774, § 22/HB 323.)

The 2006 amendment, effective April 4, 2006, redesignated former paragraphs (1) through (3) as present paragraphs (6) through (8), respectively, and added paragraphs (1) through (5), (9), and (10). For applicability, see Editor's notes.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that this division" for "provided, however, this division" in the middle of division (1)(A)(iii).

Cross references. - Fee simple estates generally, § 44-6-20 et seq.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall apply to those condemnation proceedings filed on or after February 9, 2006, where title has not vested in the condemning authority unless constitutionally prohibited.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For comment on Botts v. Southeastern Pipeline Co., 190 Ga. 689 , 10 S.E.2d 375 (1940); Harrell v. Southeastern Pipeline Co., 190 Ga. 709 , 10 S.E.2d 387 (1940), see 3 Ga. B.J. 49 (1941).

JUDICIAL DECISIONS

An easement was a compensable property interest in a condemnation action. Lee v. City of Atlanta, 219 Ga. App. 264 , 464 S.E.2d 879 (1995).

Bad faith standard properly applied. - Trial court did not err in upholding a special master's decision granting a county's petition to condemn a property owner's land because the trial court properly concluded that the special master's application of the bad faith standard was appropriate; the trial court found that even if the special master had applied the abuse or misuse of discretion standard, no evidence of record supported such a finding on the part of the county. Brunswick Landing, LLC v. Glynn County, 301 Ga. App. 288 , 687 S.E.2d 271 (2009), cert. denied, No. S10C0558, 2010 Ga. LEXIS 246 (Ga. 2010).

Cited in State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204 , 199 S.E. 793 (1938); Botts v. Southeastern Pipe-Line Co., 190 Ga. 689 , 10 S.E.2d 375 (1940); Harrell v. Southeastern Pipe-Line Co., 190 Ga. 709 , 10 S.E.2d 386 (1940).

RESEARCH REFERENCES

ALR. - Power to establish building line along street, 28 A.L.R. 314 , 44 A.L.R. 1377 , 53 A.L.R. 1222 .

Right of public body to compensation where property held by it is taken for another public purpose, 56 A.L.R. 365 .

22-1-2. Nature of right of eminent domain; property to be put to public use.

  1. The right of eminent domain is the right of this state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of this state on account of public exigency and for the public good. Thus, in time of war or insurrection the proper authorities may possess and hold any part of the territory of this state for the common safety. Notwithstanding any other provisions of law, except as provided in Code Section 22-1-15, neither this state nor any political subdivision thereof nor any other condemning authority shall use eminent domain unless it is for public use. Public use is a matter of law to be determined by the court and the condemnor bears the burden of proof.
  2. Except as provided in Code Section 22-1-15, no condemnation shall be converted to any use other than a public use for 20 years from the initial condemnation.
    1. Except as provided in Code Section 22-1-15, if property acquired through the power of eminent domain from an owner fails to be put to a public use within five years, the former property owner may apply to the condemnor or its successor or assign for reconveyance or quitclaim of the property to the former property owner or for additional compensation for such property. For purposes of this subsection, property shall be considered to have been put to a public use at the point in time when substantial good faith effort has been expended on a project to put the property to public use, notwithstanding the fact that the project may not have been completed. The application shall be in writing, and the condemnor or its successor or assign shall act on the application within 60 days by:
      1. Executing a reconveyance or quitclaim of the property upon receipt of compensation not to exceed the amount of the compensation paid by the condemnor at the time of acquisition; or
      2. Paying additional compensation to the former owner of the property, such compensation to be calculated by subtracting the price paid by the condemnor for the property at the time of acquisition from the fair market value of the property at the time the application is filed.
    2. If the condemnor fails to take either action within 60 days, the former property owner may, within the next 90 days following, initiate an action in the superior court in the county in which the property is located to reacquire the property or receive additional compensation.
    3. The condemnor shall provide notice to each former owner of the property prior to acquisition if the condemnor fails to put such property to a public use within five years. The condemnee shall have one year from the date notice is received to bring an application under this subsection.
  3. When property is acquired from more than one owner for the same public use and reconveyance or additional compensation to a single owner is impracticable, any party to the original condemnation or each person with a legal claim in such condemnation may file an action in the superior court in the county in which the property is located for an equitable resolution.
  4. This Code section shall not apply to condemnations subject to Code Section 22-3-162 or Title 32.

    (Orig. Code 1863, § 2201; Code 1868, § 2196; Code 1873, § 2222; Code 1882, § 2222; Civil Code 1895, § 3052; Civil Code 1910, § 3624; Code 1933, § 36-101; Ga. L. 2006, p. 39, § 4/HB 1313; Ga. L. 2017, p. 754, § 1/HB 434.)

The 2006 amendment, effective April 4, 2006, designated the previously existing provisions of this Code section as subsection (a); in subsection (a), deleted "; and in time of peace the General Assembly may authorize the appropriation of the same to public purposes, such as the opening of roads, construction of defenses, or providing channels for trade or travel" from the end of the second sentence, and added the last two sentences; and added subsections (b) through (d). For applicability, see Editor's notes.

The 2017 amendment, effective July 1, 2017, in subsection (a), substituted "this state" for "the state" twice in the first sentence, substituted "this state" for "the state" once in the second sentence, and inserted "except as provided in Code Section 22-1-15," near the middle of the third sentence; substituted "Except as provided in Code Section 22-1-15, no condemnation shall" for "All condemnations shall not" at the beginning of subsection (b); substituted "Except as provided in Code Section 22-1-15, if" for "If" at the beginning of paragraph (c)(1); and substituted "When" for "In the case that" at the beginning of subsection (d).

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 201 (2017). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For comment on Botts v. Southeastern Pipeline Co., 190 Ga. 689 , 10 S.E.2d 375 (1940); Harrell v. Southeastern Pipeline Co., 190 Ga. 709 , 10 S.E.2d 387 (1940), see 3 Ga. B.J. 49 (1941); State Hwy. Dep't v. Lumpkin, 222 Ga. 727 , 152 S.E.2d 557 (1966), see 3 Ga. St. B.J. 483 (1967).

JUDICIAL DECISIONS

Taking property for public use is legislative, not judicial, function. - The necessity or expediency of appropriating particular property for public use is not a matter of judicial cognizance, but one for the determination of the legislative branch of the government, and this must obviously be so where the state takes for its own purposes. State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964).

And notice to owner not required before determination of necessity. - Since the necessity for taking private property for a public use is a legislative and not a judicial function, due process does not require notice to the owner nor an opportunity to be heard by him before such determination can be made. State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964).

Eminent domain statutes to be strictly construed. - Since the power to take private property for a public use or benefit is in derogation of the right of the citizen, statutes under which it is claimed must be strictly construed, and it is generally held that the power is not conferred unless an intention to that effect appears in clear and express terms, or by necessary implication. Botts v. Southeastern Pipe-Line Co., 190 Ga. 689 , 10 S.E.2d 375 (1940), commented on in, see 3 Ga. B.J. 49 (1941).

The exercise of the right of eminent domain is a legislative function, and the powers delegated by the General Assembly thereunder must be exercised in strict conformity with the statute. DOT v. Worley, 150 Ga. App. 768 , 258 S.E.2d 595 , aff'd and modified on other grounds, 244 Ga. 783 , 263 S.E.2d 436 (1979).

No right to take land for private use. - The power of eminent domain may never be used to acquire property to be used by private individuals solely for private use and private gain. City of Atlanta v. Atlanta Gas Light Co., 144 Ga. App. 157 , 240 S.E.2d 730 (1977).

Right rests largely in discretion of exercising authority. - In the absence of bad faith the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, both as to necessity and amount. City of Atlanta v. First Nat'l Bank, 154 Ga. App. 658 , 269 S.E.2d 878 (1980).

Substituted condemnation. - Where property is condemned for exchange with another public utility, and the property will be used for a public purpose, this is called "substituted condemnation," and this is a valid exercise of the condemnor's power of eminent domain. City of Atlanta v. Atlanta Gas Light Co., 144 Ga. App. 157 , 240 S.E.2d 730 (1977).

A taking for redevelopment is a taking for a public purpose. Nations v. Downtown Dev. Auth., 225 Ga. 324 , 338 S.E.2d 240 (1985).

Cessation of work on project after notifying property owner of possible condemnation. - Where the Department of Transportation informed a corporation in the spring of 1981 that a building leased by it would be condemned for highway purposes, but later all work on the proposed highway, including all condemnation actions in progress, was halted, and the corporation sought to recover from the department its loss of an advantageous leasehold interest, as well as expenses involved in moving, since the corporation had been advised that no move was required before September 1982, and that written notification would precede a required removal, its decision to move in August 1982 was by voluntary choice, and could not be attributed to an interference by the department with its exclusive rights of ownership, use and enjoyment. Hence, whether the corporation's action was characterized as direct or inverse condemnation, the losses claimed did not result from an exercise of eminent domain. Josh Cabaret, Inc. v. DOT, 256 Ga. 749 , 353 S.E.2d 346 (1987).

Cited in Felton v. State Hwy. Bd., 51 Ga. App. 930 , 181 S.E. 506 (1935); Williamson v. Housing Auth., 186 Ga. 673 , 199 S.E. 43 (1938); Housing Auth. v. Savannah Iron & Wire Works, Inc., 90 Ga. App. 150 , 82 S.E.2d 244 (1954); Central of Ga. R.R. v. Georgia Pub. Serv. Comm'n, 257 Ga. 217 , 356 S.E.2d 865 (1987).

OPINIONS OF THE ATTORNEY GENERAL

Legislature may authorize municipality's acquisition of land beyond its limits. - The Legislature has power to authorize a municipal corporation to acquire lands beyond the municipal limits and for that purpose to exercise the power of eminent domain, where the proposed taking of private property is strictly for public use. 1965-66 Op. Att'y Gen. No. 66-65.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 1, 2, 13-16, 25-37.

Eminent Domain: Proof of Lack of Reasonable Necessity for Taking of Property, 71 POF3d 97.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 1-5, 19, 29-31.

ALR. - Exercise of eminent domain for purpose of irrigating land of private owner, 9 A.L.R. 583 , 27 A.L.R. 519 .

Right to condemn property previously condemned or purchased for public use, but not actually so used, 12 A.L.R. 1502 .

Exercise of eminent domain to control the use or improvement of property not taken, 23 A.L.R. 876 .

Constitutionality of statute conferring power of eminent domain on private corporation or association for educational, religious, or recreational purpose, 50 A.L.R. 1530 .

Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883 .

Public benefit or convenience as distinguished from use by the public as ground for the exercise of the power of eminent domain, 54 A.L.R. 7 .

Right of public body to compensation where property held by it is taken for another public purpose, 56 A.L.R. 365 .

Exercise of eminent domain to preserve places of historical interest, 59 A.L.R. 945 .

Power to condemn, or authorize the condemnation of, capital stock of a public utility, 81 A.L.R. 1071 .

Diversion of park property to other uses as taking or damaging neighboring property without compensation, 83 A.L.R. 1435 .

State power of eminent domain as affected by interstate character of uses to which property taken is to be devoted, 90 A.L.R. 1032 .

Obstruction or diversion of, or other interference with, flow of surface water as taking or damaging property within constitutional provision against taking or damaging without compensation, 128 A.L.R. 1195 .

Retention, by building or other fixture, of its character as real property, for purposes of statute authorizing condemnation of real property, notwithstanding agreement treating it as personalty, 151 A.L.R. 1429 .

Condemnation of public utility property for public utility purposes, 173 A.L.R. 1362 .

Electric light or power line in street or highway as additional servitude, 58 A.L.R.2d 525.

Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Substitute condemnation: power to condemn property or interest therein to replace other property taken for public use, 20 A.L.R.3d 862.

Eminent domain: right to enter land for preliminary survey or examination, 29 A.L.R.3d 1104.

Eminent domain: validity of appropriation of property for anticipated future use, 80 A.L.R.3d 1071.

Sufficiency of condemnor's negotiations required as preliminary to taking in eminent domain, 21 A.L.R.4th 765.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

Eminent domain: Public taking of sports or entertainment franchise or organization as taking for public purpose, 30 A.L.R.4th 1226.

Eminent domain: industrial park or similar development as public use justifying condemnation of private property, 62 A.L.R.4th 1183.

Validity of extraterritorial condemnation by municipality, 44 A.L.R.6th 259.

22-1-3. Power of General Assembly to determine when right of eminent domain may be exercised; duty of courts as to laws authorizing the condemnation of private property for private uses.

It is the province of the General Assembly to determine when the right of eminent domain may be exercised. If, however, under pretext of such necessity the General Assembly should pass a law authorizing the taking of property for private use rather than for public use, the courts should declare the law inoperative.

(Orig. Code 1863, § 2202; Code 1868, § 2197; Code 1873, § 2223; Code 1882, § 2223; Civil Code 1895, § 3053; Civil Code 1910, § 3625; Code 1933, § 36-102.)

JUDICIAL DECISIONS

Taking property for public use is legislative, not judicial, function. - The necessity or expediency of appropriating particular property for public use is not a matter of judicial cognizance, but one for the determination of the legislative branch of the government, and this must obviously be so where the state takes for its own purposes. State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964).

And Legislature has exercised jurisdiction granted by section. - In the exercise of the jurisdiction granted by this section, the Legislature passed acts which are embodied in this Code as §§ 44-8-4 and 22-3-20 . Central Ga. Power Co. v. Ham, 139 Ga. 569 , 77 S.E. 396 (1913).

Notice to owner not required before determination of necessity. - Since the necessity for taking private property for a public use is a legislative and not a judicial function, due process does not require notice to the owner nor an opportunity to be heard by him before such determination can be made. State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964).

Cited in Williamson v. Housing Auth., 186 Ga. 673 , 199 S.E. 43 (1938); Russell v. Venable, 216 Ga. 137 , 115 S.E.2d 103 (1960); Norton Realty & Loan Co. v. Board of Educ., 129 Ga. App. 668 , 200 S.E.2d 461 (1973); DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 5, 38.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 19, 29-31, 87, 88.

ALR. - Exercise of eminent domain to control the use or improvement of property not taken, 23 A.L.R. 876 .

Right of abutting owner to compensation for interference with access by bridge or other structure in public street or highway, 45 A.L.R. 534 .

Constitutionality of statute conferring power of eminent domain on private corporation or association for educational, religious, or recreational purpose, 50 A.L.R. 1530 .

Public benefit or convenience as distinguished from use by the public as ground for the exercise of the power of eminent domain, 54 A.L.R. 7 .

Power to condemn, or authorize the condemnation of, capital stock of a public utility, 81 A.L.R. 1071 .

Diversion of park property to other uses as taking or damaging neighboring property without compensation, 83 A.L.R. 1435 .

Injunction against exercise of power of eminent domain, 133 A.L.R. 11 , 93 A.L.R.2d 465.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

22-1-4. Manner in which General Assembly may exercise right of eminent domain.

The General Assembly may exercise the right of eminent domain directly through the officers of the state, through the medium of corporate bodies, or by means of individual enterprise.

(Orig. Code 1863, § 2203; Code 1868, § 2198; Code 1873, § 2224; Code 1882, § 2224; Civil Code 1895, § 3054; Civil Code 1910, § 3626; Code 1933, § 36-103.)

Law reviews. - For note, "Regulation and Ownership of the Marshlands: The Georgia Marshlands Act," see 5 Ga. L. Rev. 563 (1971).

JUDICIAL DECISIONS

Taking property for public use is legislative, not judicial, function. - The necessity or expediency of appropriating particular property for public use is not a matter of judicial cognizance, but one for the determination of the legislative branch of the government, and this must obviously be so where the state takes for its own purposes. State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964).

And notice to owner not required before determination of necessity. - Since the necessity for taking private property for a public use is a legislative and not a judicial function, due process does not require notice to the owner nor an opportunity to be heard by him before such determination can be made. State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964).

Eminent domain statutes to be strictly construed. - Since the power to take private property for a public use or benefit is in derogation of the right of the citizen, statutes under which it is claimed must be strictly construed, and it is generally held that the power is not conferred unless an intention to that effect appears in clear and express terms, or by necessary implication. Botts v. Southeastern Pipe-Line Co., 190 Ga. 689 , 10 S.E.2d 375 (1940).

Cited in Williamson v. Housing Auth., 186 Ga. 673 , 199 S.E. 43 (1938); Russell v. Venable, 216 Ga. 137 , 115 S.E.2d 103 (1960); Banks v. Georgia Power Co., 267 Ga. 602 , 481 S.E.2d 200 (1997).

OPINIONS OF THE ATTORNEY GENERAL

Legislature may authorize municipality's acquisition of land beyond its limits. - The Legislature has power to authorize a municipal corporation to acquire lands beyond the municipal limits and for that purpose to exercise the power of eminent domain, where the proposed taking of private property is strictly for public use. 1965-66 Op. Att'y Gen. No. 66-65.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 5-7, 17-24.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 19, 21-28, 89-94.

ALR. - Condemnation by de facto corporation, 44 A.L.R. 542 .

Constitutionality of statute conferring power of eminent domain on private corporation or association for educational, religious, or recreational purpose, 50 A.L.R. 1530 .

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

Eminent domain: measure and elements of damages or compensation for condemnation of public transportation system, 35 A.L.R.4th 1263.

22-1-5. Requirement of just compensation as a limitation on exercise of power of eminent domain.

Except in cases of extreme necessity and great urgency, the right of eminent domain cannot be exercised without first providing for just compensation to the owner for the interference with his exclusive rights.

(Orig. Code 1863, § 2204; Code 1868, § 2199; Code 1873, § 2225; Code 1882, § 2225; Civil Code 1895, § 3055; Civil Code 1910, § 3627; Code 1933, § 36-104.)

Cross references. - Private ways, Ga. Const. 1983, Art. I, Sec. III, Para. II. Specific powers of General Assembly, Art. III, Sec. VI, Para. II.

Law reviews. - For comment on DeKalb County v. Trustees, Decatur Lodge No. 1602, 242 Ga. 707 , 251 S.E.2d 243 (1978), see 31 Mercer L. Rev. 367 (1979).

JUDICIAL DECISIONS

Eminent domain statutes must be strictly construed. - The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by law, under which it may be done, should be closely followed. Too much caution in this respect cannot be observed to prevent abuse and oppression. Thomas v. City of Cairo, 206 Ga. 336 , 57 S.E.2d 192 (1950).

Private property cannot be taken for public uses, except under the forms and by due course of law. Thomas v. City of Cairo, 206 Ga. 336 , 57 S.E.2d 192 (1950).

Owner entitled to compensation as of date of taking. - When private property is condemned for public use the owner is entitled to receive just and adequate compensation as of the date of the taking and not as of the date of the announcement of the taking, and the value of the property should be fixed at the time of its taking. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800 , 189 S.E.2d 114 (1972).

Compensation must be paid before property is taken. - In eminent domain proceedings the property owner must be paid just and adequate compensation before his property is taken. Thomas v. City of Cairo, 206 Ga. 336 , 57 S.E.2d 192 (1950).

Payment of just and adequate compensation to the owner must always precede the taking of property for public use. City of Atlanta v. Wright, 159 Ga. App. 809 , 285 S.E.2d 250 (1981).

Taking includes interference with rights incident to property. - A taking of property for which compensation must be first paid does not require an actual physical taking, but may consist in an interference with the rights of ownership, use and enjoyment, or any other right incident to property. Woodside v. City of Atlanta, 214 Ga. 75 , 103 S.E.2d 108 (1958).

In a condemnation case, an arbitrator properly found that the condemnor who refused to assist the owner of the condemned land in relocating its plant located on the condemned land, was responsible for the owner's failure to relocate the plant. Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353 , 617 S.E.2d 612 (2005).

Because the cost of relocating a plant located on the condemned land exceeded the plant's value, as awarded by an arbitrator, the plant's owner could not be charged with failing to mitigate its damages by not relocating. Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353 , 617 S.E.2d 612 (2005).

In an eminent domain proceeding, the condemning authority could not object to an arbitrator's consideration of the cost of relocating a plant located on the condemned land because the authority made the cost of relocation a relevant issue by claiming the owner breached its duty to mitigate damages by not relocating the plant. Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353 , 617 S.E.2d 612 (2005).

Remote and speculative or possible damages are not allowed. McCrea v. Georgia Power Co., 46 Ga. App. 276 , 167 S.E. 540 (1933).

Market value is not the only criterion for determining just and adequate compensation where property is taken or damaged for public purposes. State Hwy. Dep't v. Augusta Dist. of N. Ga. Conference of Methodist Church, 115 Ga. App. 162 , 154 S.E.2d 29 (1967).

There are three recognized techniques for determining market value: replacement cost new less depreciation, income, and comparable sales. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Loss of future revenue is not a proper measure of damages in condemnation procedures, but the value of property to the owner for the particular purpose for which he designs to use it can always be shown. Harrison v. Regents of Univ. Sys., 105 Ga. App. 817 , 125 S.E.2d 793 (1962).

Attorneys' fees need not be included in measuring just compensation under the Georgia Constitution. Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980), cert. denied, 450 U.S. 936, 101 S. Ct. 1403 , 67 L. Ed. 2 d 372 (1981).

"Unique" property. - Since valuing property at its fair market value presupposes a willing buyer and a willing seller, properties are "unique" where fair market value will not afford just and adequate compensation when they are not of a type generally bought or sold in the open market. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Whether or not property is unique is a jury question. Dixie Hwy. Bottle Shop, Inc. v. Department of Transp., 150 Ga. App. 839 , 258 S.E.2d 646 (1979); DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

Valuation of "unique" property. - "Unique" property is measured by a variety of nonfair market methods of valuation, including the cost and income methods. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

It is not incorrect to instruct jury on lost profits as a means of awarding just and adequate compensation because the income approach necessarily takes into account what future earnings would be were the property interest not extinguished. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Recovery of business losses. - Business losses are recoverable as a separate item only if the property is "unique." DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

When a business belongs to the landowner, total destruction of the business at the location must be proven before business losses may be recovered as a separate element of compensation. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

When the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is not remote or speculative. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

In a condemnation case, the fact that the owner of the condemned land had ceased the operation of a rendering plant located on the land by the time of trial, did not preclude the recovery of business loss damages. Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353 , 617 S.E.2d 612 (2005).

Award of business loss damages was proper for the condemnation of land on which a rendering plant was located because the loss was not speculative: the plant was established, and plants engaged in the rendering business, were not generally bought and sold on the open market, making it unique. Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353 , 617 S.E.2d 612 (2005).

Application of law existing on date of appeal to case already tried. - Owners in condemnation cases have vested rights to just and adequate compensation which cannot be destroyed by applying the law existing as of the date of the appeal to a case that has already been tried. Dot v. Worley, 150 Ga. App. 768 , 258 S.E.2d 436 ; aff'd and modified on other grounds, 244 Ga. 783 , 263 S.E.2d 436 (1979).

Limitations on action for interference with right of access. - The property owner whose right of access is damaged by public improvements to the streets either by obstructing or cutting off completely access or travel in a particular direction may maintain an action only when the interference is at or within the first intersecting block from his property. Decatur County v. Settles, 107 Ga. App. 150 , 129 S.E.2d 212 (1962).

Insufficient compliance with O.C.G.A. § 22-1-9 . - In a condemnation action, the court vacated the trial court's order adopting the special master's return as to the property value because none of the city's offers prior to 2014 satisfied the dictates of O.C.G.A. § 22-1-9(3) and the city took several years to comply with § 22-1-9(3) , which bore on the issue of whether the city acted in bad faith, which required further consideration by the trial court. Summerour v. City of Marietta, 338 Ga. App. 259 , 788 S.E.2d 921 (2016).

The Department of Transportation is not required to condemn or pay for, as a separate and additional item of damage, the taking of a nonexistent property right, the "right of access" to a limited-access highway, except where an old highway is included therein. State Hwy. Dep't v. Kinsey, 131 Ga. App. 770 , 206 S.E.2d 835 (1974).

Cessation of work on project after notifying property owner of possible condemnation. - Where the Department of Transportation informed a corporation in the spring of 1981 that a building leased by it would be condemned for highway purposes, but later all work on the proposed highway, including all condemnation actions in progress, was halted, and the corporation sought to recover from the department its loss of an advantageous leasehold interest, as well as expenses involved in moving, since the corporation had been advised that no move was required before September 1982, and that written notification would precede a required removal, its decision to move in August 1982, was by voluntary choice, and could not be attributed to an interference by the department with its exclusive rights of ownership, use and enjoyment. Hence, whether the corporation's action was characterized as direct or inverse condemnation, the losses claimed did not result from an exercise of eminent domain. Josh Cabaret, Inc. v. DOT, 256 Ga. 749 , 353 S.E.2d 346 (1987).

Cited in Housing Auth. v. Savannah Iron & Wire Works, Inc., 90 Ga. App. 150 , 82 S.E.2d 244 (1954); DOT v. Glenn, 243 Ga. 21 , 252 S.E.2d 906 (1979); Simmons v. DOT, 225 Ga. App. 572 , 484 S.E.2d 332 (1997).

OPINIONS OF THE ATTORNEY GENERAL

Owner's recovery not restricted to market value. - The constitutional and statutory provisions as to just and adequate compensation do not necessarily restrict the owner's recovery to market value; the owner is entitled to the value of the property to him, not its value to the state. 1958-59 Op. Att'y Gen. p. 271.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 7, 150-156, 170-177. 27 Am. Jur. 2d, Eminent Domain, §§ 247-261, 266-278.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 91.

C.J.S. - 25A C.J.S., Damages, § 2. 29A C.J.S., Eminent Domain, §§ 96-205.

ALR. - Right to and measure of compensation to owner of fee when telegraph or telephone line is erected along railroad right of way or highway, 19 A.L.R. 383 .

Right of abutting owner to compensation for railroad in street under constitutional provision against damaging property for public use without compensation, 22 A.L.R. 145 .

Limitation applicable to action for consequential damage as result of taking or damaging of property for public use, 30 A.L.R. 1190 , 139 A.L.R. 1288 .

Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98 .

Right to compensation for improvements made under authority, or color thereof, by body having power of eminent domain, before exercise of that power, 34 A.L.R. 1082 .

Damage to property from proximity of cemetery as 'damage' within constitutional provision against taking or damaging property without compensation, 36 A.L.R. 527 .

Changing location of railroad or street railway in street or highway as a taking or damaging for which compensation must be made, 46 A.L.R. 1446 .

Provision for taking or retaining possession pending appeal in condemnation proceeding, 55 A.L.R. 201 .

Right of abutting owner to compensation on widening of highway space for vehicle traffic, 55 A.L.R. 896 .

Liability of railroad company to property owner for change of grade incident to construction of overhead or underground crossing, 57 A.L.R. 657 .

Lack of diligence to contest a public use on ground that compensation has not been made for private property or rights as affecting right to relief, 58 A.L.R. 681 .

Are different estates or interests in real property taken under eminent domain to be valued separately, or is entire property to be valued as a unit and the amount apportioned among separate interests, 69 A.L.R. 1263 , 166 A.L.R. 1211 .

Right of tenant to remove buildings or other fixtures as affecting tenant's right to compensation in respect to such improvements in condemnation proceeding, 75 A.L.R. 1495 .

Power to condemn, or authorize the condemnation of, capital stock of a public utility, 81 A.L.R. 1071 .

Measure and items of compensation or damages for flooding property under the right of eminent domain, 106 A.L.R. 955 .

Compensation for property confiscated or requisitioned during war, 137 A.L.R. 1290 , 147 A.L.R. 1297 , 148 A.L.R. 1384 , 149 A.L.R. 1451 ; 149 A.L.R. 1452 , 150 A.L.R. 1417 , 150 A.L.R. 1418 , 151 A.L.R. 1453 , 152 A.L.R. 1450 , 154 A.L.R. 1447 .

Extraterritorial effect of confiscation of property and nationalization of corporations, 139 A.L.R. 1209 .

Rights of mortgagee in award in eminent domain proceedings, 154 A.L.R. 1110 .

Measure of compensation in eminent domain to be paid to state or municipality for taking of public highway or street, 160 A.L.R. 955 .

General governmental policy (distinguished from specific project) as affecting compensation allowable in eminent domain, 167 A.L.R. 502 .

Damage to private property caused by negligence of governmental agents as "taking," "damage," or "use" for public purposes, in constitutional sense, 2 A.L.R.2d 677.

Elements and measure of compensation in eminent domain for temporary use and occupancy, 7 A.L.R.2d 1297.

Constitutional rights of owner as against destruction of building by public authorities, 14 A.L.R.2d 73.

Validity, construction, and effect of provisions in life or accident policy in relation to military service, 36 A.L.R.2d 1018.

Eminent domain: elements and measure of compensation for oil or gas pipeline through private property, 38 A.L.R.2d 788; 23 A.L.R.4th 631.

Municipal power to condemn land for cemetery, 54 A.L.R.2d 1322.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use, 29 A.L.R.5th 36.

Counsel's use, in trial of condemnation proceeding, of chart, diagram or blackboard, not introduced in evidence, relating to damages or the value of the property condemned, 80 A.L.R.2d 1270.

Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings, 2 A.L.R.3d 1038.

Eminent domain: restrictive covenant or right to enforcement thereof as compensable property right, 4 A.L.R.3d 1137.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901.

Substitute condemnation: power to condemn property or interest therein to replace other property taken for public use, 20 A.L.R.3d 862.

Admissibility of evidence of proposed or possible subdivision or platting of condemned land on issue of value in eminent domain proceedings, 26 A.L.R.3d 780.

Rights and liabilities of parties to executory contract for sale of land taken by eminent domain, 27 A.L.R.3d 572.

Award of, or pending proceedings for, compensation for property condemned, as precluding action for damages arising from prior trespasses upon it, 33 A.L.R.3d 1132.

Eminent domain: cost of substitute facilities as measure of compensation paid to state or municipality for condemnation of public property, 40 A.L.R.3d 143.

Abutting owner's right to damages for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 13.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.

Measure of damages for condemnation of cemetery lands, 42 A.L.R.3d 1314.

Traffic noise and vibration from highway as element of damages in eminent domain, 51 A.L.R.3d 860.

Good will or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking, 59 A.L.R.3d 488.

Eminent domain: consideration of fact that landowner's remaining land will be subject to special assessment in fixing severance damages, 59 A.L.R.3d 534.

Eminent domain: condemnor's liability for costs of condemnee's expert witnesses, 68 A.L.R.3d 546.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

Admissibility under state law of hospital record relating to intoxication or sobriety of patient, 80 A.L.R.3d 456.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Compensation for interest prepayment penalty in eminent domain proceeding, 84 A.L.R.3d 946.

Necessity of trial or proceeding separate from main condemnation trial or proceeding, to determine divided interest in state condemnation award, 94 A.L.R.3d 696.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Eminent domain: measure and elements of lessee's compensation for condemnor's taking or damaging of leasehold, 17 A.L.R.4th 337.

Sufficiency of condemnor's negotiations required as preliminary to taking in eminent domain, 21 A.L.R.4th 765.

Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 A.L.R.4th 68.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable or noncommercial use, 29 A.L.R.5th 36.

Admissibility of hospital records under Federal Business Records Act (28 USC sec. 1732(a)), 9 A.L.R. Fed. 457.

Elements and measure of compensation in eminent domain proceeding for temporary taking of property, 49 A.L.R.6th 205.

22-1-6. Right of persons to take or damage private property upon payment of just and adequate compensation.

If a person who is authorized to exercise the power of eminent domain cannot by contract procure the property or the easement, right of way, waterway, franchise, or other interest sought to be condemned, the person may take or damage the property or interest upon paying or tendering to the owner thereof just and adequate compensation.

(Ga. L. 1894, p. 95, § 2; Civil Code 1895, § 4658; Civil Code 1910, § 5207; Code 1933, § 36-302.)

Law reviews. - For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016).

JUDICIAL DECISIONS

Eminent domain statutes must be strictly construed. - The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by law, under which it may be done, should be closely followed. Too much caution in this respect cannot be observed to prevent abuse and oppression. Thomas v. City of Cairo, 206 Ga. 336 , 57 S.E.2d 192 (1950).

Private property cannot be taken for public uses, except under the forms and by due course of law. Thomas v. City of Cairo, 206 Ga. 336 , 57 S.E.2d 192 (1950).

Appropriation of land without condemnation proceedings renders one a trespasser. Postal Telegraph-Cable Co. v. Kuhnen, 127 Ga. 20 , 55 S.E. 967 (1906).

Term "right of way" is limited by § 22-2-85 , and does not imply the grant of the fee, so as to prevent the county from constructing a highway thereon. Atlanta B. & Atl. Ry. v. County of Coffee, 152 Ga. 432 , 110 S.E. 214 (1921).

What direct and consequential damages are recoverable. - Damages, both direct and consequential, which are recoverable are those arising from construction from some visible and physical inference with a specific piece of property, or with some specific right or rise connected therewith and capable of exact description. Austin v. Augusta Term. Ry., 108 Ga. 671 , 34 S.E. 852 , 47 L.R.A. 755 (1899).

Measure of damage is value of land taken and consequential damage, if any, to the remainder of the land. State Hwy. Dep't v. Weldon, 107 Ga. App. 98 , 129 S.E.2d 396 (1962).

Condemnor has burden of proving what is just and adequate compensation for the property taken. Georgia Power Co. v. Smith, 94 Ga. App. 166 , 94 S.E.2d 48 (1956).

Insufficient compliance with O.C.G.A. § 22-1-9 . - In a condemnation action, the court vacated the trial court's order adopting the special master's return as to the property value because none of the city's offers prior to 2014 satisfied the dictates of O.C.G.A. § 22-1-9(3) and the city took several years to comply with § 22-1-9(3) , which bore on the issue of whether the city acted in bad faith, which required further consideration by the trial court. Summerour v. City of Marietta, 338 Ga. App. 259 , 788 S.E.2d 921 (2016).

And whether there has been consequential damage. - The condemnor has the burden of proving whether there has been consequential damage to the remaining property and, if so, how much. Georgia Power Co. v. Smith, 94 Ga. App. 166 , 94 S.E.2d 48 (1956).

Consequential damages include interference with the right of ingress and egress resulting from construction of public works. Mallory v. Morgan County, 131 Ga. 271 , 62 S.E. 179 (1908).

Consequential damages to remaining property to be determined in separate suit. - The damages to the remainder of the property caused by negligence or trespass in the construction process may not be considered in a condemnation proceeding but must be determined in a separate lawsuit. DeKalb County v. Cowan, 151 Ga. App. 753 , 261 S.E.2d 478 (1979).

Market value is true measure of compensation. - Where property is taken under power of eminent domain for a public use, its market value for all purposes for which the property is available is the true measure of the owner's compensation. Georgia Power Co. v. Smith, 94 Ga. App. 166 , 94 S.E.2d 48 (1956).

Sales of similar property as evidence of value. - On a question in regard to the value of land sought to be condemned, it is competent to introduce evidence of sales of property similar to that in question, made at or near the time of the taking. The exact limit either of similarity or difference or of nearness or remoteness in point of time is difficult, if not impossible, to prescribe by any arbitrary rule, but must to a large extent depend on the location and the character of the property and the circumstances of the case; it is to be considered with reference to throwing light on the issue, and not as a mere method of raising a legal puzzle. West v. Fulton County, 95 Ga. App. 320 , 97 S.E.2d 785 (1957).

Present and prospective value of condemned land as bridge site may be considered in determining damages. Mitchell County v. Hudspeth, 151 Ga. 767 , 108 S.E. 305 (1921).

Correct measure of damage to one holding leasehold interest in land for over five years is the diminution in the market value of the premises for rent for the remainder of the term of the lease, that is, from the time of the damage till the end of the lease. Jones v. Richmond County, 61 Ga. App. 857 , 7 S.E.2d 754 (1940).

Failure to secure property by contract is prerequisite to condemnation. - Failure to secure the property by contract, by reason of the inability of the parties to agree upon the compensation to be paid therefor, is an essential prerequisite to the condemnation of private property for public uses. City of Elberton v. Hobbs, 121 Ga. 750 , 49 S.E. 780 (1905).

Negotiations by a county authority, procuring right of way for roads in the name of the Department of Transportation (formerly State Highway Department) in an effort to agree with the owner of the property to be taken are not only authorized, but are required. Miller v. State Hwy. Dep't, 200 Ga. 485 , 37 S.E.2d 365 (1946).

This section and § 22-1-7 require negotiation between the condemnor and condemnee and a failure to agree before condemnation proceedings can be instituted. Cable v. State Hwy. Bd., 208 Ga. 593 , 68 S.E.2d 564 (1952).

Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling the owners' exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that the condemnor could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6 . White v. Ringgold Tel. Co., 334 Ga. App. 325 , 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

And condemnor must show that proper effort was made to procure land by contract from the owner prior to institution of the condemnation proceedings. St. Clair v. State Hwy. Bd., 45 Ga. App. 488 , 165 S.E. 297 (1932).

And failure to contract may be raised as objection on appeal. - An objection by a landowner filed on appeal from an award by assessors that there was no effort to contract with him will be heard. Atlanta Terra Cotta Co. v. Georgia Ry. & Elec. Co., 132 Ga. 537 , 64 S.E. 563 (1909).

Tender and refusal by owner of the fair value of property is sufficient negotiation. Bridwell v. Gate City Term. Co., 127 Ga. 520 , 56 S.E. 624 , 10 L.R.A. (n.s.) 909 (1907).

Letter addressed to an executor personally, and not in his representative capacity will not authorize a city to condemn the property. City of Atlanta v. Austell, 146 Ga. 456 , 91 S.E. 478 (1917).

Railroads may contract for property necessary to their operation. Atlanta B. & Atl. Ry. v. County of Coffee, 152 Ga. 432 , 110 S.E. 214 (1921).

If landowner permits, without legal objection, public utility to appropriate his land to its necessary corporate use until such becomes a necessary and constituent part of its service to the public, the landowner, not for the protection so much of the company but for the benefit of the public, will be estopped from recovering the land in ejectment or from enjoining its use for the service, but will, if he moves in time, be remitted to an appropriate action for damages. Georgia Power Co. v. Kelly, 182 Ga. 33 , 184 S.E. 861 (1936).

Ordinance allowing city to refuse property and payment held invalid. - City ordinance which provides for the condemnation of property, with the proviso that the city might refuse to accept the property or to pay the award of the assessors if the amount, manner of payment, and terms thereof were not satisfactory to the city, is invalid and city would be enjoined from proceeding thereunder. Thomas v. City of Cairo, 206 Ga. 336 , 57 S.E.2d 192 (1950).

Cited in Western Union Tel. Co. v. Western & A.R.R., 142 Ga. 532 , 83 S.E. 135 (1914); Hoch v. Candler, 190 Ga. 390 , 9 S.E.2d 622 (1940); United States v. A Certain Tract or Parcel of Land, 44 F. Supp. 712 (S.D. Ga. 1942); State Hwy. Dep't v. Whitehurst, 106 Ga. App. 532 , 127 S.E.2d 501 (1962); State Hwy. Dep't v. Hilliard, 112 Ga. App. 498 , 145 S.E.2d 824 (1965); Multitex Corp. of Am. v. Dickinson, 683 F.2d 1325 (11th Cir. 1982).

OPINIONS OF THE ATTORNEY GENERAL

Damages measured by fair market value of property. - Ordinarily, when an entire parcel of property is taken, or an entire leasehold interest is taken, the measure of the damages is the "market value" of the land or leasehold interest as the case might be; market value has been defined as the price which may be paid by one wishing but not required to buy, to one wishing but not required to sell. 1958-59 Op. Att'y Gen. p. 271.

But owner's recovery not restricted to market value. - The constitutional and statutory provisions as to just and adequate compensation does not necessarily restrict the owner's recovery to market value; the owner is entitled to the value of the property to him, not its value to the state. 1958-59 Op. Att'y Gen. p. 271.

Fair and reasonable value of property as measure of damages. - The measure of damages for property taken by the right of eminent domain, being compensatory in its nature, is the pecuniary loss sustained by the owner, taking into consideration all relevant factors; this loss may be represented by the fair and reasonable value of the property taken if the market value would not coincide with the actual value thereof. 1958-59 Op. Att'y Gen. p. 271.

Costs of removing personal or business property from real estate. - The cost of moving personal property from real estate which is taken for public purposes cannot be considered as an element of damage, as such; however, the cost of removal of either fixtures, buildings, or personalty, especially when used for business purposes, may be considered as one of the factors entering into a determination of the value of the real estate to the condemnee from whom it is taken. 1958-59 Op. Att'y Gen. p. 271.

Reimbursement of utility companies relocated due to interstate highway construction. - Utility companies whose facilities must be relocated or reconstructed by reason of the construction of any segment of the Interstate Highway System must be reimbursed therefor. 1958-59 Op. Att'y Gen. p. 184.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 150-166, 170-177. 27 Am. Jur. 2d, Eminent Domain, §§ 247-261, 266-278, 387-389.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 91.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 96-205, 222, 224.

ALR. - Expense of building and maintaining fences as element in the determination of damages in eminent domain, 10 A.L.R. 451 .

Compensation in second eminent domain proceeding, 18 A.L.R. 569 .

Right under constitutional provision against taking or damaging, to recover in other than an eminent domain proceeding, for consequential damages to property no part of which is taken, 20 A.L.R. 516 .

Changing location of railroad or street railway in street or highway as a taking or damaging for which compensation must be made, 46 A.L.R. 1446 .

Damages in eminent domain as affected by actual or potential value of riparian rights in connection with other property, 58 A.L.R. 796 .

Measure of damages or compensation where property is taken to widen street, 64 A.L.R. 1513 .

Are different estates or interests in real property taken under eminent domain to be valued separately, or is entire property to be valued as a unit and the amount apportioned among separate interests, 69 A.L.R. 1263 , 166 A.L.R. 1211 .

Conveyance as passing right to proceeds of condemnation proceedings pending at time of conveyance, 82 A.L.R. 1063 .

Measure and items of compensation or damages for flooding property under the right of eminent domain, 106 A.L.R. 955 .

Right of owner or occupant of property to damages, and measure and elements thereof, because of temporary closing or obstruction during repairs or reconstruction of street or highway, under statutes in the regard, 120 A.L.R. 896 .

Elements and measure of compensation for power lines or other wire lines over private property, 124 A.L.R. 407 .

Distinction between income or profits from business on land and income or profits from use of land, as affecting admissibility of evidence in that regard on question of damages in eminent domain, 134 A.L.R. 1125 .

Rights in respect of proceeds of an award in eminent domain proceedings made after mortgage foreclosure sale, 170 A.L.R. 272 .

Damage to private property caused by negligence of governmental agents as "taking," "damage," or "use" for public purposes, in constitutional sense, 2 A.L.R.2d 677.

Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property, 6 A.L.R.2d 1197.

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Elements and measure of compensation in eminent domain for temporary use and occupancy, 7 A.L.R.2d 1297.

Eminent domain: elements and measure of compensation for oil or gas pipeline through private property, 38 A.L.R.2d 788.

Abutting owner's right to damages or other relief for loss of access because of limited-access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Liability of public utility to abutting owner for destruction or injury of trees in or near highway or street, 64 A.L.R.2d 866.

Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.

Counsel's use, in trial of condemnation proceeding, of chart, diagram or blackboard, not introduced in evidence, relating to damages or the value of the property condemned, 80 A.L.R.2d 1270.

Rights in condemnation award where land taken was subject to possible rights of reverter or reentry, 81 A.L.R.2d 568.

Right to damages or compensation upon condemnation of property, of holder of unexercised option to purchase, 85 A.L.R.2d 588.

Changes in purchasing power of money as affecting compensation in eminent domain proceedings, 92 A.L.R.2d 772.

Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings, 2 A.L.R.3d 1038.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901.

Substitute condemnation: power to condemn property or interest therein to replace other property taken for public use, 20 A.L.R.3d 862.

Rights and liabilities of parties to executory contract for sale of land taken by eminent domain, 27 A.L.R.3d 572.

Award of, or pending proceedings for, compensation for property condemned, as precluding action for damages arising from prior trespasses upon it, 33 A.L.R.3d 1132.

Eminent domain: cost of substitute facilities as measure of compensation paid to state or municipality for condemnation of public property, 40 A.L.R.3d 143.

Traffic noise and vibration from highway as element of damages in eminent domain, 51 A.L.R.3d 860.

Good will or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

Admissibility under state law of hospital record relating to intoxication or sobriety of patient, 80 A.L.R.3d 456.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Compensation for interest prepayment penalty in eminent domain proceedings, 84 A.L.R.3d 946.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Sufficiency of condemnor's negotiations required as preliminary to taking in eminent domain, 21 A.L.R.4th 765.

Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding, 23 A.L.R.4th 631.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 A.L.R.4th 68.

Solar energy: landowner's rights against interference with sunlight desired for purposes of solar energy, 29 A.L.R.4th 349.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

Admissibility of hospital records under Federal Business Records Act (28 USC sec. 1732(a)), 9 A.L.R. Fed. 457.

22-1-7. Effect of failure to agree on compensation.

If the parties cannot agree upon the compensation to be paid, the same shall be assessed and determined as provided in Article 1 of Chapter 2 of this title.

(Ga. L. 1894, p. 95, § 3; Civil Code 1895, § 4659; Civil Code 1910, § 5208; Code 1933, § 36-303.)

JUDICIAL DECISIONS

Eminent domain statutes must be strictly construed. - The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by law, under which it may be done, should be closely followed. Too much caution in this respect cannot be observed to prevent abuse and oppression. Thomas v. City of Cairo, 206 Ga. 336 , 57 S.E.2d 192 (1950).

Private property cannot be taken for public uses, except under the forms and by due course of law. Thomas v. City of Cairo, 206 Ga. 336 , 57 S.E.2d 192 (1950).

Sole question to be passed upon is amount of compensation. - In a proceeding under this section, the sole question to be passed upon by the assessors, or a jury in the superior court on appeal, is the amount of compensation to be paid. Atlantic & B.R.R. v. Penny, 119 Ga. 479 , 46 S.E. 665 (1904).

Compensation must be paid before property is taken. - In eminent domain proceedings the property owner must be paid just and adequate compensation before his property is taken. Thomas v. City of Cairo, 206 Ga. 336 , 57 S.E.2d 192 (1950).

Negotiations with property owner required. - Negotiations by a county authority, procuring right of way for roads in the name of the Department of Transportation (formerly State Highway Department) in an effort to agree with the owner of the property to be taken are not only authorized, but are required. Miller v. State Hwy. Dep't, 200 Ga. 485 , 37 S.E.2d 365 (1946).

This section and § 22-1-6 require negotiation between the condemnor and condemnee and a failure to agree before condemnation proceedings can be instituted. Cable v. State Hwy. Bd., 208 Ga. 593 , 68 S.E.2d 564 (1952).

Cited in Barber v. Housing Auth., 189 Ga. 155 , 5 S.E.2d 425 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 387-389.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 91.

C.J.S. - 29A C.J.S., Eminent Domain, § 224.

ALR. - Eminent domain: elements and measure of compensation for oil or gas pipeline through private property, 38 A.L.R.2d 788; 23 A.L.R.4th 631.

Mandamus to compel ascertainment of compensation for property taken or for injuries inflicted under the power of eminent domain, 91 A.L.R.2d 991.

Admissibility under state law of hospital record relating to intoxication or sobriety of patient, 80 A.L.R.3d 456.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Sufficiency of condemnor's negotiations required as preliminary to taking in eminent domain, 21 A.L.R.4th 765.

Admissibility of hospital records under Federal Business Records Act (28 USC sec. 1732(a)), 9 A.L.R. Fed. 457.

22-1-8. Exclusive nature of title.

All persons authorized to take or damage private property for public purposes shall proceed as set forth in this title.

(Ga. L. 1894, p. 95, § 1; Civil Code 1895, § 4657; Civil Code 1910, § 5206; Code 1933, § 36-301.)

JUDICIAL DECISIONS

Second application for condemnation. - Where an application for condemnation is filed, and no steps are taken thereunder and it is abandoned, a new application may be made without reference to the abandoned application. Hutchinson v. Copeland, 146 Ga. 357 , 91 S.E. 206 (1917).

Injunction against condemnation. - The court grants an injunction against condemnation where it is shown that the plaintiff had made a bona fide selection of the right of way sought to be condemned. Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420 , 75 S.E. 471 , 42 L.R.A. (n.s.) 225 (1912); Nashville, C. & S.L. Ry. v. Western Union Tel. Co., 142 Ga. 525 , 83 S.E. 123 (1914).

Appropriation or damage for public purposes. - It is only where property has been appropriated or damaged by the erection and maintenance of a public improvement that the owner can recover upon the theory that his property has been appropriated or damaged for public purposes. Rhines v. Commissioners of Chatham County, 50 Ga. App. 844 , 179 S.E. 140 (1935).

Law prescribing condemnation procedure incorporated by implication in municipal charter. - Where city charter declared that city would have full power and authority to condemn property for the purpose of opening new streets to be exercised in the manner provided in this section and § 22-2-61(a) , which taken alone do not provide a method, the general law of the state prescribing the procedure and the method of ascertaining damages became by implication a part of the municipal charter. Glidden Co. v. City of Collins, 189 Ga. 656 , 7 S.E.2d 266 (1940).

Cited in Fleming v. City of Rome, 130 Ga. 383 , 61 S.E. 5 (1908); Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420 , 75 S.E. 471 , 42 L.R.A. (n.s.) 225 (1912); Willcox v. State Hwy. Bd., 38 Ga. App. 373 , 144 S.E. 214 (1928); Central of Ga. Ry. v. Thomas, 167 Ga. 110 , 144 S.E. 739 (1928); H.G. Hastings Co. v. Southern Natural Gas Corp., 173 Ga. 212 , 159 S.E. 853 (1931); State Hwy. Bd. v. Shierling, 51 Ga. App. 935 , 181 S.E. 885 (1935); Harrison v. State Hwy. Dep't, 183 Ga. 290 , 188 S.E. 445 (1936); State Hwy. Bd. v. Long, 61 Ga. App. 173 , 6 S.E.2d 130 (1939); Hoch v. Candler, 190 Ga. 390 , 9 S.E.2d 622 (1940); United States v. A Certain Tract or Parcel of Land, 44 F. Supp. 712 (S.D. Ga. 1942); Marist Soc'y v. City of Atlanta, 212 Ga. 115 , 90 S.E.2d 564 (1955); Combs v. State Hwy. Dep't, 111 Ga. App. 132 , 140 S.E.2d 892 (1965); DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985).

RESEARCH REFERENCES

C.J.S. - 25A C.J.S., Damages, § 2.

22-1-9. Policies and practices guiding exercise of eminent domain.

In order to encourage and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in the courts, to assure consistent treatment for property owners, and to promote public confidence in land acquisition practices, all condemnations and potential condemnations shall, to the greatest extent practicable, be guided by the following policies and practices:

  1. The condemning authority shall make every reasonable effort to acquire expeditiously real property by negotiation;
  2. Where the condemning authority seeks to obtain a fee simple interest in real property, real property shall be appraised before the initiation of negotiations, and the owner or his or her designated representatives shall be given an opportunity to accompany the appraiser during his or her inspection of the property, except that the condemning authority may, by law, rule, regulation, or ordinance, prescribe a procedure to waive the appraisal in cases involving the acquisition by sale or donation of property with a low fair market value;
  3. Before the initiation of negotiations for fee simple interest for real property, the condemning authority shall establish an amount which it believes to be just compensation and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the condemning authority's independent appraisal of the fair market value of such property. The condemning authority shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated. The condemning authority shall consider alternative sites suggested by the owner of the property as part of the compensation offered;
  4. No owner shall be required to surrender possession of real property before the condemning authority pays the agreed purchase price or deposits with the court in accordance with this title, for the benefit of the owner, an amount not less than the condemning authority's appraisal of the fair market value of such property or the amount of the award of compensation in the condemnation proceeding for such property;
  5. The construction or development of a project for public use shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling or to move his or her business or farm operation without at least 90 days' written notice from the condemning authority of the date by which such move is required;
  6. If the condemning authority permits an owner or tenant to occupy the real property acquired on a rental basis for a short term or for a period subject to termination by the condemning authority on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier;
  7. In no event shall the condemnor act in bad faith in order to compel an agreement on the price to be paid for the property;
  8. If any legal interest in real property is to be acquired by exercise of the power of eminent domain, the condemning authority shall institute formal condemnation proceedings. No condemnor shall intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his or her real property; and
  9. A person whose real property is being acquired in accordance with this title may, after the person has been fully informed of his or her right to receive just compensation for such property, donate such property, any part thereof, any legal interest therein, or any compensation paid to a condemning authority, as such person shall determine. (Code 1981, § 22-1-9 , enacted by Ga. L. 2006, p. 39, § 5/HB 1313; Ga. L. 2013, p. 141, § 22/HB 79; Ga. L. 2018, p. 1112, § 22/SB 365.)

Effective date. - This Code section became effective April 4, 2006.

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, in paragraph (3), revised punctuation in the first sentence and substituted "it established" for "he or she established" in the third sentence.

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "property as part of the compensation offered" for "property as of the compensation offered" at the end of the last sentence in paragraph (3).

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

Sufficient compliance with O.C.G.A. § 22-1-6 shown. - Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling the owners' exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that the condemnor could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6 . White v. Ringgold Tel. Co., 334 Ga. App. 325 , 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

Compliance with O.C.G.A. § 22-1-9 . - Summary envisioned by O.C.G.A. § 22-1-9(3) requires, at a minimum, information sufficient, as part of the prompt offer, required prior to the initiation of the negotiations, to provide the property owner with the ability to meaningfully evaluate the offer; simply informing the property owner that the property has been appraised and that the amount offered is the appraised amount, while certainly concise, fails to convey the sum and substance of the basis of the offer. Summerour v. City of Marietta, 338 Ga. App. 259 , 788 S.E.2d 921 (2016).

Insufficient compliance with O.C.G.A. § 22-1-9 . - In a condemnation action, the court vacated the trial court's order adopting the special master's return as to the property value because none of the city's offers prior to 2014 satisfied the dictates of O.C.G.A. § 22-1-9(3) and the city took several years to comply with § 22-1-9(3) , which bore on the issue of whether the city acted in bad faith, which required further consideration by the trial court. Summerour v. City of Marietta, 338 Ga. App. 259 , 788 S.E.2d 921 (2016).

City seeking to acquire a landowner's property violated O.C.G.A. § 22-1-9(3) because the city failed to disclose the appraisal summary to the owner in a timely manner as required by the statute, instead sending the summary 10 months after the summary was requested by the owner; the statute was mandatory, and dismissal of the condemnation petition was the proper remedy. City of Marietta v. Summerour, 302 Ga. 645 , 807 S.E.2d 324 (2017).

22-1-10. Duties of condemnor prior to exercise of eminent domain; rights of condemnee; exceptions.

  1. Prior to exercising the power of eminent domain, a governmental condemnor shall:
    1. Not less than 15 days before any meeting at which a resolution approving the exercise of eminent domain is to be considered, post a sign, if possible, in the right of way adjacent to each property that is subject to the proposed use of the eminent domain power stating the time, date, and place of such meeting;
    2. Attempt to serve the condemnee personally with notice of the meeting not less than 15 days before any meeting at which such resolution is to be considered, unless service is acknowledged or waived by the condemnee. If the attempted service is unsuccessful, service of notice may be satisfied by mail or statutory overnight delivery to the property owner at the address of record and, if different from the property owner, to the parties in possession of the property, return receipt requested;
    3. Ensure that any notice that is required by law to be published be placed in the county legal organ, but such notice shall not be published in the legal notices section of such newspaper; and
    4. Ensure that any meeting at which such resolution is to be considered and voted on shall commence after 6:00 P.M.

      Any such resolution shall specifically and conspicuously delineate each parcel to be affected.

  2. A nongovernmental condemnor shall, with respect to its exercise of the power of eminent domain in general, by action of the governing body or chief executive officer of the condemnor designate who is authorized to approve the exercise of the power of eminent domain by the condemnor and provide a method for documenting the time of the exercise of final approval of a particular exercise of the power of eminent domain by that individual or group of individuals. Such a condemning authority shall with respect to any particular exercise of the power of eminent domain:
    1. Not less than 15 days before the documented time of approval of the exercise of eminent domain, post a sign, if possible, in the right of way adjacent to each property that is subject to the proposed use of the eminent domain power stating: (A) that the property is subject to a proposed condemnation which may be initiated after 15 days from the date of posting; (B) the date of posting; and (C) the name, business address, and telephone number of the condemnor;
    2. Not less than 15 days before the documented time of approval of the exercise of eminent domain serve the condemnee personally with notice of the proposed condemnation stating: (A) that the property is subject to a proposed condemnation which may be initiated after 15 days from the date of service; (B) the date of service; and (C) the name, business address, and telephone number of the condemnor. If the attempted service is unsuccessful, service of notice may be satisfied by mail or statutory overnight delivery to the property owner at the address of record and, if different from the property owner, to the parties in possession of the property, return receipt requested; and
    3. Provide the condemnee with an opportunity to meet with the individual or group of individuals having the power of documented approval or a representative of such individual or individuals.
  3. The condemnee may in writing waive any rights of the condemnee under this Code section.
  4. Any notice required to be personally served or mailed under this Code section shall be accompanied by a written statement of the rights that the condemnee possesses including but not limited to the right to notice, damages, hearing, and appeal of any award entered by the special master as described in this title. The written statement of rights shall also include the right to bring a motion pursuant to Code Section 22-1-11 as well as a sample motion. The Department of Community Affairs shall promulgate written notice of rights forms that shall be used for purposes of this subsection. The Department of Community Affairs shall promulgate different notice forms for each of the types of condemnation proceedings authorized by law. This subsection shall not become effective until the Department of Community Affairs has promulgated the written notice of rights forms contemplated under this subsection and such forms shall be promulgated no later than January 1, 2007.
  5. This Code section shall not apply to condemnations for the purposes of constructing or expanding one or more electric transmission lines, to condemnations pursuant to Code Section 46-8-121 , or to any condemnations under Title 32. (Code 1981, § 22-1-10 , enacted by Ga. L. 2006, p. 39, § 5/HB 1313.)

Effective date. - This Code section became effective April 4, 2006, except that subsection (d) became effective by its own terms not later than January 1, 2007.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

JUDICIAL DECISIONS

Resolution valid. - Trial court did not err in authorizing a county to condemn a property owner's land, which was located in a city because the county was not required to show the city's consent as a precondition to condemnation, and the resolution, which authorized the use of eminent domain, referred to and incorporated an attachment to the resolution, an exhibit that specifically delineated each parcel that the county sought to condemn. Brunswick Landing, LLC v. Glynn County, 301 Ga. App. 288 , 687 S.E.2d 271 (2009), cert. denied, No. S10C0558, 2010 Ga. LEXIS 246 (Ga. 2010).

Cited in City of Marietta v. Summerour, 302 Ga. 645 , 807 S.E.2d 324 (2017).

22-1-10.1. Time for bringing condemnation action; exceptions.

  1. Except as provided in subsections (b) and (c) of this Code section, no action for condemnation may be brought in any court of this state until at least 30 days after the date of the resolution or documented approval described in Code Section 22-1-10.
  2. If an emergency condition exists requiring the acquisition of property for the protection of the public health and safety, the condemnor may declare the existence of an emergency and adopt a resolution defining the emergency. Notice and hearing as required by Code Section 22-1-10 may be waived by the condemning body in an emergency condition.
  3. This Code section shall not apply to the acquisition or condemnation of property where consent is received from each person with a legal claim that has been identified or found. (Code 1981, § 22-1-10.1 , enacted by Ga. L. 2006, p. 39, § 5/HB 1313.)

Effective date. - This Code section became effective April 4, 2006.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

22-1-11. Determination of authority to exercise public domain.

Before the vesting of title in the condemnor and upon motion of the condemnee, or within ten days of the entry of the special master's award by entry of exception to the case, the court shall determine whether the exercise of the power of eminent domain is for a public use and whether the condemning authority has the legal authority to exercise the power of eminent domain and may stay other proceedings of the condemnation pending the decision of the court. The condemning authority shall bear the burden of proof by the evidence presented that the condemnation is for a public use as defined in Code Section 22-1-1. Nothing in this Code section shall be construed to require the condemnee to seek or obtain a special master's award prior to a hearing or decision by the court under this Code section.

(Code 1981, § 22-1-11 , enacted by Ga. L. 2006, p. 39, § 5/HB 1313.)

Effective date. - This Code section became effective April 4, 2006.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall apply to those condemnation proceedings filed on or after February 9, 2006, where title has not vested in the condemning authority unless constitutionally prohibited.

Law reviews. - For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

JUDICIAL DECISIONS

Dismissal of action as nonjusticiable upheld. - Because city had yet to file a condemnation action against a landowner, landowner's suit seeking a public use determination under O.C.G.A. § 22-1-11 was properly dismissed, as it failed to present a justiciable controversy, and the city's mere inchoate intention to do so, if at all, did not give rise to a justiciable cause of action; moreover, if the appeals court construed this section to be applicable before the initiation of a condemnation action, the court would render meaningless the phrase "before the vesting of title in the condemnor," because that clarification would be redundant. Fox v. City of Cumming, 289 Ga. App. 803 , 658 S.E.2d 408 (2008).

Property owner's interpretation was not lacking in justification. - Property owner's interpretation of O.C.G.A. § 22-1-11 was not so devoid of a justiciable issue or so lacking in substantial justification that it could not be reasonably believed that a court would accept that interpretation, such that an award of attorney fees against the owner pursuant to O.C.G.A. § 9-15-14(a) and (b) could not stand. Fox v. City of Cumming, 298 Ga. App. 134 , 679 S.E.2d 365 (2009).

Cited in City of Marietta v. Summerour, 302 Ga. 645 , 807 S.E.2d 324 (2017).

22-1-12. Reimbursement to property owner of reasonable costs and expenses associated with condemnation proceedings.

In all actions where a condemning authority exercises the power of eminent domain, the court having jurisdiction of a proceeding instituted by a condemnor to acquire real property by condemnation shall award the owner of any right or title to or interest in such real property such sum as will in the opinion of the court reimburse such owner for his or her reasonable costs and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if:

  1. The final judgment is that the condemning authority cannot acquire the real property by condemnation; or
  2. The proceeding is abandoned by the condemning authority. (Code 1981, § 22-1-12 , enacted by Ga. L. 2006, p. 39, § 5/HB 1313.)

Effective date. - This Code section became effective April 4, 2006.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall apply to those condemnation proceedings filed on or after February 9, 2006, where title has not vested in the condemning authority unless constitutionally prohibited.

Law reviews. - For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016).

JUDICIAL DECISIONS

Cited in City of Marietta v. Summerour, 302 Ga. 645 , 807 S.E.2d 324 (2017).

22-1-13. Compensation to condemnee for relocation damages and expenses.

In addition to the types of relocation damages permissible under law, any condemnee that is displaced as a result of the condemnation shall be entitled to:

  1. Actual reasonable expenses in moving himself or herself, his or her family, business, farm operation, or other personal property within a reasonable distance from the property condemned;
  2. Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation;
  3. Such other relocation expenses as authorized by law; and
  4. With the consent of the condemnee, the condemnor may provide alternative site property as full or partial compensation. (Code 1981, § 22-1-13 , enacted by Ga. L. 2006, p. 39, § 5/HB 1313.)

Effective date. - This Code section became effective April 4, 2006.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall apply to those condemnation proceedings filed on or after February 9, 2006, where title has not vested in the condemning authority unless constitutionally prohibited.

Law reviews. - For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

JUDICIAL DECISIONS

Cited in City of Marietta v. Summerour, 302 Ga. 645 , 807 S.E.2d 324 (2017).

22-1-14. Valuation of condemned property.

  1. When property is condemned under this title or any other title of this Code, the value of the condemned property may be determined through lay or expert testimony and its admissibility shall be addressed to the sound discretion of the court.
  2. If any party to a condemnation proceeding seeks to introduce expert testimony as to the issue of just and adequate compensation, Code Section 24-7-702 shall not apply. (Code 1981, § 22-1-14 , enacted by Ga. L. 2006, p. 39, § 5/HB 1313; Ga. L. 2011, p. 99, § 38/HB 24.)

Effective date. - This Code section became effective April 4, 2006.

The 2011 amendment, effective January 1, 2013, substituted "Code Section 24-7-702" for "Code Section 24-9-67.1" near the end of subsection (b). See Editor's notes for applicability.

Cross references. - Expert opinion testimony in civil actions, § 24-7-702 .

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall apply to those condemnation proceedings filed on or after February 9, 2006, where title has not vested in the condemning authority unless constitutionally prohibited.

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For annual survey of evidence law, see 58 Mercer L. Rev. 151 (2006). For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Lay witness opinion inadmissible on cost to build bridge. - Trial court did not abuse the court's discretion in excluding, for insufficient foundation, a witness's opinion testimony concerning the cost to build a bridge over a waterway to cure trusts' lost usage after the condemnation of a ford over the waterway because the proffer the trusts made did not demonstrate pursuant to O.C.G.A. § 24-9-66 a basis upon which the witness could have formed the witness's own opinion on the cost to build the bridge apart from the single estimate the witness received; the trusts did not proffer that the witness obtained any other estimates concerning the cost to construct the bridge, spoke to anyone else about that cost, or possessed or sought to obtain any other information about that cost or about the accuracy of the estimate the witness had received. Martha K. Wayt Trust v. City of Cumming, 306 Ga. App. 790 , 702 S.E.2d 915 (2010).

Cited in Mason v. Home Depot U.S.A., Inc., 283 Ga. 271 , 658 S.E.2d 603 (2008).

22-1-15. Process for condemnor to condemn property for public use; requirements; service.

  1. As used in this Code section, the term:
    1. "Condemnor" means a county, municipality, or consolidated government of this state.
    2. "Economic development" means any economic activity to increase tax revenue, tax base, or employment or improve general economic health, when the activity does not result in:
      1. Transfer of land to public ownership;
      2. Transfer of property to a private entity that is a public utility; or
      3. Lease of property to private entities that occupy an incidental area within a public project.
    3. "Public use" means the remedy of blight when economic development is a secondary or ancillary public benefit of condemnation.
  2. A condemnor seeking to condemn property for public use under this Code section shall first petition the superior court of the county having jurisdiction for a judgment in rem against such property seeking a determination as to whether the property complained of in the petition is blighted property.
  3. The petition described in subsection (b) of this Code section shall set forth:
    1. The facts showing the right to condemn;
    2. The property or interest to be taken;
    3. The names and residences of the persons whose property or interests are to be taken or otherwise affected, so far as known;
    4. A description of any unknown persons or classes of unknown persons whose rights in the property or interest are to be affected;
    5. A description of the appearance of the property and any structures thereon;
    6. Such other facts as are necessary for a full understanding of the cause;
    7. A statement setting forth the need of the court to review the evidence and determine whether such property meets the definition of blight;
    8. A prayer for an order to be issued by the court as may be proper and desired; and
    9. Whether any of the persons referred to in this subsection are minors or disabled.
    1. Upon presentation of the petition set forth in subsection (c) of this Code section, the court shall issue an order requiring all parties of interest to appear at a time and place named in the order and make known their objections if any as to the question of whether the property shall be deemed blighted.
    2. The date of the hearing shall be no less than 30 days from the date such petition is filed.
    3. The order described in paragraph (1) of this subsection shall give directions for providing notice of the hearing and the service of such notices.
    4. It shall not be necessary to attach any other process to the petition except the order referred to in paragraph (1) of this subsection, and the cause shall proceed as in rem.
  4. All persons entitled to notice under the facts stated in the petition shall be personally served with a copy of the petition and order issued pursuant to subsection (d) of this Code section as in other causes at law, unless such service is waived in writing. All other service shall be made by the method as provided in Part 2 of Article 1 of Chapter 2 of this title, and all persons so served shall be deemed parties to the cause.
  5. In any cases where it seems to the court to be in the interest of justice and of more effective notice to cause additional notice or service to be given, it shall be within the court's discretion to so order. In such cases, such additional notice and service shall be made as ordered before the cause proceeds to final hearing. In cases where any taxes are alleged to be due or unpaid, the order shall direct that a separate notice to that effect be given the proper tax collector or tax commissioner.
  6. On the day named in the order made pursuant to subsection (d) of this Code section, or at any other time to which the hearing may be continued, the court, having first passed on and adjudged all questions touching service and notice, shall, after hearing from all persons responding and desiring to be heard, make such order as is appropriate based on the evidence as to whether or not the property shall be deemed blighted.
  7. Any property deemed blighted shall be described in the order adjudging such determination and contain a statement of the then current approved land use of the property, or in the case of vacant property, the last lawful use for which the property was occupied, and such property's future use shall be restricted to the same land use as stated in the order for a period of five years from the date of the order.
  8. A condemnor which has obtained an order under subsection (h) of this Code section declaring a property to be blighted shall within 60 days from such order, or in the event of an appeal, 60 days from the date when the remittitur of the appellate court is made the judgment of the court, file an action to condemn the property pursuant to the procedures set forth in Article 3 of Chapter 2 of this title. When a condemnor proceeds as set forth in Article 3 of Chapter 2 of this title, it shall attach a copy of the order issued under subsection (h) of this Code section. (Code 1981, § 22-1-15 , enacted by Ga. L. 2017, p. 754, § 2/HB 434.)

Effective date. - This Code section became effective July 1, 2017.

Law reviews. - For article on the 2017 enactment of this Code section, see 34 Ga. St. U.L. Rev. 201 (2017). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

CHAPTER 2 CONDEMNATION PROCEDURE GENERALLY

Proceeding Before Assessors.

G ENERAL PROVISIONS .

N OTICE OF CONDEMNATION .

S ELECTION AND OATH OF ASSESSORS .

H EARING .

A PPEALS AND FINAL JUDGMENT .

Proceeding Before Special Master.

Proceeding Before Court.

Cross references. - Procedure for obtaining private ways, see § 44-9-40 et seq.

Law reviews. - For comment on Georgia Power Co. v. Fountain, 207 Ga. 361 , 61 S.E.2d 454 (1950), see 13 Ga. B.J. 341 (1951). For comment on State Hwy. Dep't v. Owens, 120 Ga. App. 647 , 171 S.E.2d 770 (1969), and the right to inquire as to property owner's knowledge of condemnation prior to making improvements, see 22 Mercer L. Rev. 616 (1971).

JUDICIAL DECISIONS

Only public necessity can justify taking of private property. - The right of the humblest individual in the enjoyment of his property must be protected. The right to take private property from the owner for public use often works extreme hardship and savors of oppression. Nothing but a public necessity can justify it, and then only in strict conformity with the law. Williams v. City of La Grange, 213 Ga. 241 , 98 S.E.2d 617 (1957).

Condemnor chooses its method of procedure, and it is bound by the provisions of law following its own election. The property owner is also bound, although he did not choose the method of procedure. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Amendment of notice of condemnation proceedings is perfectly proper where its allowance does not adversely and substantially affect the condemnee's rights. Taylor v. Georgia Power Co., 129 Ga. App. 89 , 198 S.E.2d 701 (1973).

Condemnor has burden of proving land value and consequential damages. - The burden of proof to show the value of the land taken and the consequential damages to the remaining property, if any, is on the condemnor. State Hwy. Dep't v. Smith, 111 Ga. App. 292 , 141 S.E.2d 590 (1965).

Sole question for assessors or jury is amount of compensation. - Where proceedings are instituted for the purpose of acquiring property for public purposes, the sole question which may be passed upon by the appointed assessors, or by a jury on appeal, is the amount of compensation to be paid to one whose property is being taken by the condemning authorities. Since the legislature has not expressly provided any method whereby the property owner can contest the question of public necessity or the right of condemnation, the property owner is left without a legal remedy and must resort to an independent action in a court of equity for relief. Williams v. City of La Grange, 213 Ga. 241 , 98 S.E.2d 617 (1957); B. & W. Hen Farm, Inc. v. Georgia Power Co., 222 Ga. 830 , 152 S.E.2d 841 (1966).

The sole power of the assessors provided by Article 2 of this chapter relates to the value of the property taken and to no other question. City of Carrollton v. Walker, 215 Ga. 505 , 111 S.E.2d 79 (1959).

In condemnation cases, the sole question for the consideration of the jury, upon an appeal from an award of the assessors or from an award of a special master, is the amount of compensation to be paid to the condemnee for the property taken under the condemnation proceeding and the amount of damages to the remaining property of the condemnee, if any. State Hwy. Dep't v. Smith, 111 Ga. App. 292 , 141 S.E.2d 590 (1965).

Appeal from award of assessors is de novo investigation, and the defendant in such proceedings may file an appropriate legal defense thereto. City of Macon v. Ries, 179 Ga. 320 , 176 S.E. 21 (1934).

An appeal from the award of assessors in a condemnation proceeding under the provisions of this chapter is a de novo investigation, and the defendant may file appropriate pleadings and defenses therein as in other suits. Georgia Power Co. v. Lightfoot, 97 Ga. App. 330 , 103 S.E.2d 99 (1958).

This chapter does not provide for intervention by any person claiming interest in property, whether or not such person was served with notice. Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

Statutory construction where procedural provisions incomplete. - Where wording is taken from a prior statute, or where Article 2 of this chapter fails to be complete within itself, then reference to provisions for proceedings before assessors is permitted to fill in the void. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Contesting validity of condemnation proceedings. - Where a property owner participates in proceedings but refuses to take the award of the assessors, and where the property owner acted promptly after the award of the assessors was made by filing his petition in equity, alleging that the condemnor was proceeding illegally and had no right to condemn, and sought to enjoin the entering upon or taking possession of his property, the property owner is not estopped from contesting the validity of the condemnation proceedings. Johnston v. Clayton County Water Auth., 222 Ga. 39 , 148 S.E.2d 417 (1966).

The Department of Transportation may not condemn municipally owned property as the legislature has not clearly granted such authority or created a procedure therefore, and as such grant may not be implied from statutory provisions generally establishing a procedure for state agencies to condemn "private property." DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985).

Condemnation for transportation purposes. - Even though the title to property to be condemned for transportation purposes was not in question, a city could choose to use procedures set forth in this section and, although it could have done so, was not required to use the procedures set forth in this chapter. Back v. City of Warner Robins, 217 Ga. App. 326 , 457 S.E.2d 582 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Date of taking is date of special master's or assessor's award. 1970 Op. Att'y Gen. No. 70-116.

Appraiser should be instructed to update appraisal to date of hearing before special master; this appraisal should contemplate that the amount of the award will be paid into court by condemnor within ten days of such hearing by the special master, and this is the amount that the appraiser should be prepared to testify to if and when there is an appeal of the matter to a jury in the superior court by either party thereto. 1970 Op. Att'y Gen. No. 70-116.

RESEARCH REFERENCES

Eminent Domain: Lessee's Recovery of Compensation for Taking of Leasehold Interest, 56 POF3d 419.

Eminent Domain: Proof of Lack of Reasonable Necessity for Taking of Property, 71 POF3d 97.

ALR. - Expense of flagmen, gates, and automatic signals as items of compensation to railroad company across whose tracks a highway is laid, 4 A.L.R. 137 .

Eminent domain: rights of one having inchoate right to dower, 5 A.L.R. 1347 , 101 A.L.R. 697 .

Liability upon abandonment of eminent domain proceedings for loss or expenses incurred by property owner, 31 A.L.R. 356 , 121 A.L.R. 12 ; 121 A.L.R. 12 ; 92 A.L.R.2d 349.

Depreciation of property by location of school as taking or damaging within constitutional provision, 48 A.L.R. 1031 .

Constitutionality of statute which permits consideration of enhanced value of lands not taken, in fixing compensation for property taken or damaged in exercise of eminent domain, 68 A.L.R. 784 .

Constitutionality of provisions as to tribunal which shall fix the amount of compensation for taking of property in eminent domain, otherwise than objections that a trial by jury is necessary, 74 A.L.R. 569 .

Right to compensation in eminent domain on basis of entire extent of property or complete use ultimately contemplated in excess of present requirements, 75 A.L.R. 855 .

Right of tenant to remove buildings or other fixtures as affecting tenant's right to compensation in respect to such improvements in condemnation proceeding, 75 A.L.R. 1495 .

Right of owner of dominant estate to have compensation for taking of easement by eminent domain determined with reference to land and improvements held in the dominant estate, 98 A.L.R. 640 .

Right to abandon and effect of abandonment of eminent domain proceedings, 121 A.L.R. 12 .

Special value or adaptability of property for purpose for which it is taken, as an element of, or matter for consideration in fixing, damages in condemnation proceedings, 124 A.L.R. 910 .

Distinction between income or profits from business on land and income or profits from use of land, as affecting admissibility of evidence in that regard on question of damages in eminent domain, 134 A.L.R. 1125 .

Increment to value, from project for which land is condemned, as a factor in fixing compensation, 147 A.L.R. 66 .

Liability upon abandonment of eminent domain proceedings for loss or expenses incurred by property owner, 92 A.L.R.2d 349.

Eminent domain: valuation of land and improvements and fixtures thereon separately or as unit, 1 A.L.R.2d 878.

Constitutional rights of owner as against destruction of building by public authorities, 14 A.L.R.2d 73.

Attorney's fees as within statute imposing upon condemner liability for "expenses," "costs," and the like, 26 A.L.R.2d 1295.

Abutting owner's right to damages or other relief for loss of access because of limited-access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.

Distribution as between life tenant and remainderman of proceeds of condemned property, 91 A.L.R.2d 963.

Condemnor's right, as against condemnee, to interest on excessive money deposited in court or paid to condemnee, 99 A.L.R.2d 886.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901.

Necessity of trial or proceeding separate from main condemnation trial or proceeding to determine divided interest in state condemnation award, 94 A.L.R.3d 696.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

Good will or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Eminent domain: measure and elements of lessee's compensation for condemnor's taking or damaging of leasehold, 17 A.L.R.4th 337.

Sufficiency of condemnor's negotiations required as preliminary to taking in eminent domain, 21 A.L.R.4th 765.

Damages resulting from temporary conditions incident to public improvements or repairs as compensable taking, 23 A.L.R.4th 674.

Eminent domain: measure and elements of damages or compensation for condemnation of public transportation system, 35 A.L.R.4th 1263.

Validity, construction, and effect of statute or lease provision expressly governing rights and compensation of lessee upon condemnation of leased property, 22 A.L.R.5th 327.

ARTICLE 1 PROCEEDING BEFORE ASSESSORS

JUDICIAL DECISIONS

This article is constitutional, although no special tribunal to pass on the question of necessity is provided for. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554 , 42 S.E. 1 (1902).

This article is general in its nature and applies to all persons, natural and artificial, who come within its purview. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554 , 42 S.E. 1 (1902).

This article provides method to be followed when private property is taken or damaged for public purposes, and the procedure herein prescribed cannot be adopted when the property is sought to be taken for a purely private purpose. Garbutt Lumber Co. v. Georgia & Ala. Ry., 111 Ga. 714 , 36 S.E. 942 (1900); Jones & Co. v. Venable, 120 Ga. 1 , 47 S.E. 549 , 1 Ann. Cas. 185 (1904).

This article changed prior law enunciated in Parham v. Justices of Inferior Court, 9 Ga. 341 (1851), requiring a special act to authorize condemnation. Marietta Chair Co. v. Henderson, 121 Ga. 399 , 49 S.E. 312 , 104 Am. St. R. 156 , 2 Ann. Cas. 83 (1904).

And prior laws are superseded. - All prior laws providing different method of procedure for taking property under the power of eminent domain are superseded by this article. Alexander v. City Council, 134 Ga. 849 , 68 S.E. 704 (1910); Bibb Brick Co. v. Central of Ga. Ry., 151 Ga. 83 , 105 S.E. 833 (1921).

Act permitting municipality to condemn land in fee simple is unconstitutional. M. O'Dowd's Sons & Co. v. City Council, 141 Ga. 748 , 82 S.E. 148 (1914).

Power granted by charter not affected. - The power granted the Georgia Railroad & Banking Company to condemn private property in the manner prescribed in its original charter as amended by the Act approved December 26, 1836 (Prince's Dig. 358), could not legally be, and was not affected by the passage of this article. Gardner v. Georgia R.R. & Banking Co., 117 Ga. 522 , 43 S.E. 863 (1903) (decided prior to enactment of § 46-8-121 ).

Power delegated to municipality. - If the power of eminent domain is conferred on the municipality by its charter, and no provision is made therein for its exercise, the general law embodied in this article is by implication a part of the law delegating the power. Stowe v. Town of Newborn, 127 Ga. 421 , 56 S.E. 516 (1907). See Georgia R.R. & Banking Co. v. Mayor of Union Point, 119 Ga. 809 , 47 S.E. 183 (1904); Zachry v. Mayor of Harlem, 138 Ga. 195 , 75 S.E. 4 (1912).

"Property" for purposes of this article is limited to "private property" as indicated by the original enacting Act (Ga. L. 1894, p. 95) and by operation of § 22-1-8 . DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985).

State property not subject to condemnation. - Statutes providing for condemnation of land for public use do not provide that they shall apply to the state, nor is there anything to imply that the Legislature intended such statutes to be applicable to the sovereign. Western Union Tel. Co. v. Western & A.R.R., 142 Ga. 532 , 83 S.E. 135 (1914).

Nor is interest of lessee of state property subject to condemnation. Western Union Tel. Co. v. Western & A.R.R., 142 Ga. 532 , 83 S.E. 135 (1914).

Consent of property owner not necessary. - In condemnation proceedings authorized by this article, the willingness or unwillingness of the property owner to part with his property is not a subject matter of consideration. Central Ga. Power Co. v. Mays, 137 Ga. 120 , 72 S.E. 900 (1911).

Assessors need not be county residents. - It is not necessary that assessors appointed in condemnation proceeding under this article should be residents of the county where such proceeding is instituted. Hutchinson v. Copeland, 146 Ga. 357 , 91 S.E. 206 (1917).

Power of condemnation may be exercised by railroad whose tracks cross the tracks of another. Atlantic & B.R.R. v. Seaboard Air-Line Ry., 116 Ga. 412 , 42 S.E. 761 (1902).

Person or corporation engaged in quarrying business, who needs right of way for private railroad across the lands of others, is authorized in a case of necessity to obtain the right of way by condemnation proceedings. Francis Jones & Co. v. Venable, 120 Ga. 1 , 47 S.E. 549 , 1 Ann. Cas. 185 (1904).

Contesting validity of condemnation proceedings. - Where a property owner participates in proceedings but refuses to take the award of the assessors, and where the property owner acted promptly after the award of the assessors was made by filing his petition in equity, alleging that the condemnor was proceeding illegally and had no right to condemn, and sought to enjoin the entering upon or taking possession of his property, the property owner is not estopped from contesting the validity of the condemnation proceedings. Johnston v. Clayton County Water Auth., 222 Ga. 39 , 148 S.E.2d 417 (1966).

Statutory construction where procedural provisions incomplete. - Where wording is taken from a prior statute, or where Article 2 of this chapter fails to be complete within itself, then reference to provisions for proceedings before assessors is permitted to fill in the void. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

If public authority does not proceed directly to condemn, injured citizen has right to compensation under the state Constitution. A cause of action for "inverse condemnation" will lie. Powell v. Ledbetter Bros., 251 Ga. 649 , 307 S.E.2d 663 (1983).

Cited in Mitchell County v. Hudspeth, 151 Ga. 767 , 108 S.E. 305 (1921); Ainslee v. County of Morgan, 151 Ga. 82 , 105 S.E. 836 (1921); Commissioners of Decatur County v. Curry, 154 Ga. 378 , 114 S.E. 341 (1922).

PART 1 G ENERAL PROVISIONS

Law reviews. - For article, "Liabilities of the Former Officer or Director," see 18 Ga. St. B.J. 150 (1982). For article, "Condemning Local Government Condemnation," see 39 Mercer L. Rev. 11 (1987).

22-2-1. "Condemnor" defined.

As used in this article, the term "condemnor" means any person or corporation which has been authorized by the General Assembly to exercise the power of eminent domain.

JUDICIAL DECISIONS

Railroads as condemnors. - See Central of Ga. R.R. v. Georgia Pub. Serv. Comm'n, 257 Ga. 217 , 356 S.E.2d 865 (1987).

RESEARCH REFERENCES

ALR. - Jury trial under Rule 71A(h) of Federal Rules of Civil Procedure (Fed. Rules Civ. Proc., Rule 71A(h), 28 U.S.C.A.) in condemnation proceedings by United States, 164 A.L.R. Fed. 341.

PART 2 N OTICE OF CONDEMNATION

Cross references. - Service of process generally, § 9-11-4 .

22-2-20. Persons entitled to receive notice generally.

Any person seeking to condemn property for public purposes shall serve a notice of condemnation on the owner of the property or of any remainder, reversion, mortgage, lease, security deed, or other interest therein.

(Ga. L. 1894, p. 95, § 4; Civil Code 1895, § 4660; Civil Code 1910, § 5209; Code 1933, § 36-304.)

JUDICIAL DECISIONS

Statutory requirements as to service must be observed. - A condemnation proceeding under the power of eminent domain, even if it be considered as an action in rem, is a statutory proceeding, and statutory requirements as to service must be observed. Chattooga County v. Scott, 215 Ga. 68 , 108 S.E.2d 876 (1959).

"Property" for purposes of this article is limited to "private property" as indicated by the original enacting Act (Ga. L. 1894, p. 95) and by operation of § 22-1-8 . DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985).

Notice must describe property with same definiteness as deed. - Preliminary to the exercise of power of eminent domain for the purpose of opening a public street it is incumbent upon the city to serve a notice upon the owner of the property sought to be condemned, which shall describe the property, with the same definiteness as is required in a deed of conveyance of land. Glidden Co. v. City of Collins, 189 Ga. 656 , 7 S.E.2d 266 (1940).

Preliminary to the exercise of the power granted by § 22-3-20 , for the purpose of erecting an electric line with necessary poles and fixtures, it is incumbent upon the power company to serve a notice on the owner of the property sought to be condemned, which notice shall describe the property with the same definiteness as is required in a deed of conveyance of land. Gunn v. Georgia Power Co., 205 Ga. 85 , 52 S.E.2d 449 (1949).

Assessor to be appointed by hearing date fixed in notice. - Construing together this section and §§ 22-2-25(a) , 22-2-26 , and 22-2-41 , the landowner has until the day fixed for the hearing in the notice in which to appoint his assessor, which hearing shall not be less than 15 days from the time of serving the notice. A different ruling is not required by the decision in City of Elberton v. Adams, 130 Ga. 501 , 61 S.E. 18 (1908); Sheppard v. City of Edison, 161 Ga. 907 , 132 S.E. 218 (1926).

Notice cannot be amended while matter is before assessors. Nashville, C. & S.L. Ry. v. Western Union Tel. Co., 142 Ga. 525 , 83 S.E. 123 (1914).

Amendment reducing amount of property from fee simple to easement is permitted on appeal. Georgia G.R.R. v. Venable, 129 Ga. 341 , 58 S.E. 864 (1907).

Judgment void where owner not named or served. - Where the owner is not named or served in a three-appraiser proceeding, and neither acknowledges nor waives service, a judgment rendered in such proceeding is void, though the court had jurisdiction of the subject matter. DOT v. Garrett, 154 Ga. App. 104 , 267 S.E.2d 643 (1980).

Mistake as to identity of owner does not absolutely void proceeding. - In rem proceedings involving eminent domain takings, where there has been an error as to the true owner of the property such that the true owner has not in fact been given notice and an opportunity to be heard, will not absolutely void a completed proceeding, and the true owner cannot have the judgment set aside, but is relegated to a claim in personam based on his right to compensation. DOT v. Garrett, 154 Ga. App. 104 , 267 S.E.2d 643 (1980).

Unauthorized notice given by president of corporation cannot be ratified by directors. Bridwell v. Gate City Term. Co., 127 Ga. 520 , 56 S.E. 624 , 10 L.R.A. (n.s.) 909 (1907).

Notice held sufficient. - A notice which stated that condemnor was a corporation of this state, and proposed to use the property for railway purposes and that the property was necessary for public purposes, is sufficient. Central of Ga. Ry. v. Bibb Brick Co., 149 Ga. 83 , 99 S.E. 126 (1919).

Relief for owners of remainder interest not made parties to condemnation proceeding. - Owners of remainder interest in property who were not made parties to an in rem proceeding to condemn that property for a public purpose could obtain monetary relief for the value of their remainder but could not set aside the judgment of condemnation awarding title to a public body. Georgia Dep't of Transp. v. Woodward, 254 Ga. 587 , 331 S.E.2d 557 (1985).

Lessee entitled to notice. - Lessee of property which was subjected to a partial taking was entitled to notice from the condemnor, not the lessor. Sims v. Foss, 201 Ga. App. 345 , 411 S.E.2d 59 (1991).

Cited in Central of Ga. Ry. v. Thomas, 167 Ga. 110 , 144 S.E. 739 (1928); Ammons v. Central of Ga. Ry., 215 Ga. 758 , 113 S.E.2d 438 (1960); Robinson v. Transcontinental Gas Pipe Line Corp., 306 F. Supp. 201 (N.D. Ga. 1969).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 393.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 196-204, 236, 242-244.

ALR. - Protection of rights of mortgagee in eminent domain proceedings, 58 A.L.R. 1534 , 110 A.L.R. 542 , 154 A.L.R. 1110 .

Protection of rights of mortgagee in eminent domain proceedings, 110 A.L.R. 542 , 154 A.L.R. 1110 .

Right to damages or compensation upon condemnation of property, of holder of unexercised option to purchase, 85 A.L.R.2d 588.

Validity, construction, and effect of statute or lease provision expressly governing rights and compensation of lessee upon condemnation of leased property, 22 A.L.R.5th 327.

Rights and liabilities of parties to executory contract for sale of land taken by eminent domain, 27 A.L.R.3d 572.

22-2-21. Direction of notice where owner a minor or under disability; appointment of guardian ad litem.

  1. If the owner of the property or of any interest therein is a minor or under any disability whatsoever, notice of condemnation shall be served upon his or her guardian.
  2. If there is no guardian, notice shall be served personally on the minor and on the judge of the probate court of the county where the property or interest is located. The judge shall thereupon appoint a guardian ad litem to represent the minor in the litigation.
  3. If the judge of the probate court is disqualified, by reason of interest or other cause, notice shall be served on the clerk of the superior court of the county where the property or interest is located, who shall appoint a guardian ad litem to represent the minor.

    (Ga. L. 1894, p. 95, §§ 5-7; Civil Code 1895, §§ 4661, 4662, 4663; Civil Code 1910, §§ 5210, 5211, 5212; Code 1933, §§ 36-305, 36-306, 36-307; Ga. L. 2004, p. 161, § 4.1.)

The 2004 amendment, effective July 1, 2005, substituted "or her guardian" for "personal representative" at the end of subsection (a) and substituted "guardian" for "personal representative" at the beginning of the first sentence of subsection (b).

Editor's notes. - Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2005, and all appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act."

JUDICIAL DECISIONS

Relief for owners of remainder interest not made parties to condemnation proceeding. - Owners of remainder interest in property who were not made parties to an in rem proceeding to condemn that property for a public purpose could obtain monetary relief for the value of their remaindermant but could not set aside the judgment of condemnation awarding title to a public body. Georgia Dep't of Transp. v. Woodward, 254 Ga. 587 , 331 S.E.2d 557 (1985).

RESEARCH REFERENCES

C.J.S. - 29A C.J.S., Eminent Domain, §§ 204, 243.

ALR. - Proceeds of sale or condemnation of real property of infant or incompetent as real or personal property, 90 A.L.R. 897 .

22-2-22. Serving notice on trustees of trust property and remaindermen.

If the property or interest sought to be condemned is held in trust or if the condemnation is directed toward property in which remainders have been created, notice shall be served on the trustee and on any persons who have an interest under the conveyance.

(Ga. L. 1894, p. 95, § 8; Civil Code 1895, § 4664; Civil Code 1910, § 5213; Code 1933, § 36-308.)

RESEARCH REFERENCES

ALR. - Protection of rights of mortgagee in eminent domain proceedings, 58 A.L.R. 1534 , 110 A.L.R. 542 , 154 A.L.R. 1110 .

22-2-23. Direction of notice where owner or guardian a nonresident; representation by judge of the probate court of nonresident owners and others whose addresses are unknown.

If the owner of the property or of any interest therein or the guardian of any owner resides out of the state, notice shall be served on the person in possession of the property or interest. Notice shall also be served on the nonresident owner or owners or the nonresident guardian as provided in Code Section 32-3-9. If the address of the owner or owners or of the guardian is not known, the judge of the probate court of the county where the property or interest is located shall act for such nonresident owners in the manner provided for unrepresented minors in Code Section 22-2-21.

(Ga. L. 1894, p. 95, § 9; Civil Code 1895, § 4665; Civil Code 1910, § 5214; Code 1933, § 36-309; Ga. L. 2004, p. 161, § 4.2.)

The 2004 amendment, effective July 1, 2005, substituted "guardian" for "personal representative" three times throughout this Code section.

Editor's notes. - Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2005, and all appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act."

JUDICIAL DECISIONS

Statutory requirements as to service must be observed. - A condemnation proceeding under the power of eminent domain, even if it be considered as an action in rem, is a statutory proceeding, and statutory requirements as to service must be observed. Chattooga County v. Scott, 215 Ga. 68 , 108 S.E.2d 876 (1959).

Cited in Whitney v. Central Ga. Power Co., 134 Ga. 213 , 67 S.E. 197 , 19 Ann. Cas. 982 (1910).

RESEARCH REFERENCES

C.J.S. - 72 C.J.S., Process, §§ 43 et seq., 73, 74.

ALR. - Eminent domain: permissible modes of service of notice of proceedings, 89 A.L.R.2d 1404.

22-2-24. Direction of notice where owner unknown or where unknown remaindermen possible; right of owner to second assessment upon his appearance; return of surplus award to condemnor.

If the owner of the property or of any interest therein is unknown or if there is a possibility of unborn remaindermen having an interest, notice shall be served on the person in actual possession of the property or interest and also on the judge of the probate court of the county where the property or interest is located, who shall act for the unknown owner as provided for unrepresented minors in Code Section 22-2-21, provided that, whenever the unknown owner may appear, he may ask for and have another assessment under the terms of this title and he shall receive the amount then assessed. If the second assessment is less than the first, the judge of the probate court shall return the surplus to the person originally condemning.

(Ga. L. 1894, p. 95, § 10; Civil Code 1895, § 4666; Civil Code 1910, § 5215; Code 1933, § 36-310.)

JUDICIAL DECISIONS

Cited in City of Cartersville v. Sloan, 105 Ga. App. 754 , 125 S.E.2d 522 (1962).

RESEARCH REFERENCES

C.J.S. - 72 C.J.S., Process, § 43 et seq.

ALR. - Are different estates or interests in real property taken under eminent domain to be valued separately, or is entire property to be valued as a unit and the amount apportioned among separate interests, 69 A.L.R. 1263 , 166 A.L.R. 1211 .

Rights in condemnation award where land taken was subject to possible rights of reverter or reentry, 81 A.L.R.2d 568.

Distribution as between life tenant and remainderman of proceeds of condemned property, 91 A.L.R.2d 963.

22-2-25. Manner and time of service.

  1. Unless service is acknowledged or waived, a copy of the notice of condemnation shall be served by a sheriff or deputy at least 15 days before the day fixed for assessing the damage either:
    1. Personally on the owner of the property or other interest or on the representative of any owner or on any other person entitled to service;
    2. By leaving a copy of the notice at the residence of the owner, representative, or other person entitled to service; or
    3. In the case of an owner, representative, or other person entitled to service who is a nonresident, by mailing a copy to that person's last known address.
  2. In cases where service cannot be effected by leaving notice at place of residence or by personal service:
    1. Fifteen days before the day fixed for assessing the damages, the sheriff shall post the notice at the door of the courthouse of the county where the property or interest is located; and
    2. One week before the day fixed for assessing the damages, the sheriff shall cause the notice to be published once in the official organ of the county.

      (Ga. L. 1894, p. 95, §§ 11, 12; Civil Code 1895, §§ 4667, 4668; Civil Code 1910, §§ 5216, 5217; Code 1933, §§ 36-311, 36-312; Ga. L. 1966, p. 248, § 1.)

JUDICIAL DECISIONS

Assessor to be appointed by hearing date fixed in notice. - Construing together subsection (a) of this section and §§ 22-2-20 , 22-2-26 , and 22-2-41 , the landowner has until the day fixed for the hearing in the notice in which to appoint his assessor, which hearing shall not be less than 15 days from the time of serving the notice. A different ruling is not required by the decision in City of Elberton v. Adams, 130 Ga. 501 , 61 S.E. 18 (1908); Sheppard v. City of Edison, 161 Ga. 907 , 132 S.E. 218 (1926).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 394.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 245-249. 72 C.J.S., Process, §§ 43 et seq., 73, 74.

ALR. - Eminent domain: permissible modes of service of notice of proceedings, 89 A.L.R.2d 1404.

22-2-26. Contents of notice.

  1. All notices shall be directed to the owner of the property or of any interest therein and shall:
    1. Describe the property or franchise and the amount of interest therein sought to be condemned;
    2. Fix the time when the hearing will be had on the premises;
    3. Give the name of the assessor selected by the person seeking condemnation; and
    4. Request the owner or owners, the trustee, or the representative, as the case may be, to select an assessor.
  2. If the owner is unknown, the notice shall be directed to "all persons having any interest in the property located at ________ (description of location of property)."

    (Ga. L. 1894, p. 95, § 13; Civil Code 1895, § 4669; Civil Code 1910, § 5218; Code 1933, § 36-313.)

JUDICIAL DECISIONS

Notice must describe property with same definiteness as deed. - Preliminary to the exercise of power of eminent domain for the purpose of opening a public street it is incumbent upon the city to serve a notice upon the owner of the property sought to be condemned, which shall describe the property, with the same definiteness as is required in a deed of conveyance of land. Glidden Co. v. City of Collins, 189 Ga. 656 , 7 S.E.2d 266 (1940).

Preliminary to the exercise of the power granted by § 22-3-20 , for the purpose of erecting an electric line with necessary poles and fixtures, it is incumbent upon the power company to serve a notice on the owner of the property sought to be condemned, which notice shall describe the property with the same definiteness as is required in a deed of conveyance of land. Gunn v. Georgia Power Co., 205 Ga. 85 , 52 S.E.2d 449 (1949).

The notice of an intention to condemn an easement in property which must be given under this section requires the condemnor to describe the property in which an easement is to be acquired with the same degree of definiteness as is required in a deed to land. B. & W. Hen Farm, Inc. v. Georgia Power Co., 222 Ga. 830 , 152 S.E.2d 841 (1966); City of Atlanta v. Airways Parking Co., 225 Ga. 173 , 167 S.E.2d 145 (1969).

Notice to secure easement of flowage held sufficient. - See Central Ga. Power Co. v. Maddox, 135 Ga. 246 , 69 S.E. 109 (1910).

Assessor to be appointed by hearing date fixed in notice. - Construing together this section and §§ 22-2-20 , 22-2-25(a) , and 22-2-41 , the landowner has until the day fixed for the hearing in the notice in which to appoint his assessor, which hearing shall not be less than 15 days from the time of serving the notice. A different ruling is not required by the decision in City of Elberton v. Adams, 130 Ga. 501 , 61 S.E. 18 (1908); Sheppard v. City of Edison, 161 Ga. 907 , 132 S.E. 218 (1926).

Cited in Harrison v. State Hwy. Dep't, 183 Ga. 290 , 188 S.E. 445 (1936); Hoch v. Candler, 190 Ga. 390 , 9 S.E.2d 622 (1940).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 394.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 243, 244. 30 C.J.S., Eminent Domain, §§ 292-294. 72 C.J.S., Process, §§ 43 et seq., 73, 74.

PART 3 S ELECTION AND OATH OF ASSESSORS

JUDICIAL DECISIONS

Condemnor chooses its method of procedure, and it is bound by the provisions of law following its own election. The property owner is also bound, although he did not choose the method of procedure. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Statutory construction where procedural provisions incomplete. - Where wording is taken from a prior statute, or where Art. 2 of this chapter fails to be complete within itself, then reference to the provisions for proceedings before assessors is permitted to fill in the void. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); Minsk v. Fulton County, 83 Ga. App. 520 , 64 S.E.2d 336 (1951); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960); Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

22-2-40. Selection of assessors generally; authority.

  1. The condemnor and the condemnee shall each select an assessor, and the two assessors so selected shall select a third assessor. No person shall be selected as an assessor unless such person is a real estate appraiser who has an appraiser classification of certified general appraiser granted under Chapter 39A of Title 43, the "Real Estate Appraiser and Classification Act." The condemnor shall be liable for the costs of the assessor selected by or for the condemnor, the condemnee shall be liable for the costs of the assessor selected by or for the condemnee, and the costs of the assessor selected by the other assessors or by the judge shall be split equally between the condemnor and condemnee. The combined total costs of all three assessors shall not exceed $500.00 per day.
  2. The assessors selected as provided in subsection (a) of this Code section shall have no authority to decide questions of law including, but not limited to, issues of compensability.
  3. The assessors selected as provided in subsection (a) of this Code section shall have the authority to refer questions of law to the appropriate superior court prior to entering an award. Neither party shall be prohibited from appealing a question of law to the superior court after the entry of the assessor's award.

    (Ga. L. 1894, p. 95, § 15; Civil Code 1895, § 4671; Civil Code 1910, § 5220; Code 1933, § 36-402; Ga. L. 1998, p. 1539, § 1.)

The 1998 amendment, effective July 1, 1998, designated the existing provisions as subsection (a), and added the second through fourth sentences; and added subsections (b) and (c).

Law reviews. - For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U.L. Rev. 115 (1998).

22-2-41. Selection of assessor by judge of the probate court where owners or their representatives fail to select an assessor, where owner unknown, etc.; selection of assessor by clerk of superior court where judge of the probate court disqualified; rights of owners in selecting assessor.

  1. If any party to the condemnation notifies the judge of the probate court of the county where the property or interest is located that the owner of the property has failed to select an assessor, or that the owners or their representatives have failed to agree on an assessor, or that the owner is unknown, or that the owner or any one of the owners is a minor or otherwise under disability and without legal representative, the judge of the probate court shall select an assessor for such owners or representatives. If the judge of the probate court is disqualified, the clerk of the superior court of the county shall make the selection after like notice.
  2. All persons having any interest in the property sought to be condemned shall have equal rights in the selection of an assessor.

    (Ga. L. 1894, p. 95, § 14; Civil Code 1895, § 4670; Civil Code 1910, § 5219; Code 1933, § 36-401.)

JUDICIAL DECISIONS

Owner of land should have reasonable time after service of notice within which to select assessor. City of Elberton v. Adams, 130 Ga. 501 , 61 S.E. 18 (1908).

Assessor to be appointed by hearing date fixed in notice. - Construing together this section and §§ 22-2-20 , 22-2-25(a) , and 22-2-26 , the landowner has until the day fixed for the hearing in the notice in which to appoint his assessor, which hearing shall not be less than 15 days from the time of serving the notice. A different ruling is not required by the decision in City of Elberton v. Adams, 130 Ga. 501 , 61 S.E. 18 (1908); Sheppard v. City of Edison, 161 Ga. 907 , 132 S.E. 218 (1926).

It is not essential that assessors be residents of county where proceeding is instituted. Hutchinson v. Copeland, 146 Ga. 357 , 91 S.E. 206 (1917).

Cited in Patterson v. State Hwy. Dep't, 201 Ga. 860 , 41 S.E.2d 260 (1947); Gilmore v. Sandersville R.R., 149 F. Supp. 725 (M.D. Ga. 1955); Miller v. Georgia Power Co., 222 Ga. 239 , 149 S.E.2d 479 (1966); James v. Housing Auth., 233 Ga. 447 , 211 S.E.2d 738 (1975).

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Eminent Domain, §§ 292-294.

22-2-42. Failure of parties' nominees to select third assessor.

If the two assessors selected by the condemnor and the condemnee do not agree upon a third assessor within five days after the selection of the second assessor, the judge of the superior court of the county where the property or interest is situated shall, upon application of either party, of which the other shall have notice, make the selection.

(Ga. L. 1894, p. 95, § 15; Civil Code 1895, § 4671; Civil Code 1910, § 5220; Code 1933, § 36-402.)

JUDICIAL DECISIONS

Cited in Gilmore v. Sandersville R.R., 149 F. Supp. 725 (M.D. Ga. 1955).

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Eminent Domain, §§ 292-294.

22-2-43. Oath of assessors.

The three assessors thus selected shall be sworn by some officer authorized to administer an oath "to do equal and exact justice between the parties according to law."

(Ga. L. 1894, p. 95, § 16; Civil Code 1895, § 4672; Civil Code 1910, § 5221; Code 1933, § 36-403.)

JUDICIAL DECISIONS

No requirement that oath be taken before notice sent to condemnee. - There is no statutory provision requiring that the oath required by this section be taken before sending out the notice to the condemnee of the time and place when a hearing will be held. Landers v. Georgia Pub. Serv. Comm'n, 217 Ga. 804 , 125 S.E.2d 495 (1962).

Cited in Jones v. Faulkner, 101 Ga. App. 547 , 114 S.E.2d 542 (1960); State Hwy. Dep't v. King, 107 Ga. App. 220 , 129 S.E.2d 577 (1963).

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Eminent Domain, § 295.

PART 4 H EARING

JUDICIAL DECISIONS

Eminent domain statutes must be strictly construed. - The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by this section, under which it may be done, should be closely followed. Too much caution in this respect cannot be observed to prevent abuse and oppression. City of Cartersville v. Long, 105 Ga. App. 762 , 125 S.E.2d 539 (1962).

Burden of proving value of land and consequential damages on condemnor. - The burden of proof to show the value of the land taken and the consequential damages to the remaining property, if any, is on the condemnor. State Hwy. Dep't v. Smith, 111 Ga. App. 292 , 141 S.E.2d 590 (1965).

Owner seeking injunction not estopped from naming assessor. - A property owner who files a petition to enjoin condemnation proceedings, alleging that the condemnor is proceeding illegally and had no right to condemn, is not estopped from maintaining his equitable petition by his participation thereafter in the condemnation proceedings by the naming of an assessor, where he has refused the award of the assessors. Johnston v. Clayton County Water Auth., 222 Ga. 39 , 148 S.E.2d 417 (1966).

Compensation the sole issue for jury on appeal. - In condemnation cases, the sole question for the consideration of the jury, upon an appeal from an award of the assessors or from an award of a special master, is the amount of compensation to be paid to the condemnee for the property taken under the condemnation proceeding and the amount of damages to the remaining property of the condemnee, if any. State Hwy. Dep't v. Smith, 111 Ga. App. 292 , 141 S.E.2d 590 (1965).

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960); Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

OPINIONS OF THE ATTORNEY GENERAL

Date of taking is date of special master's or assessor's award. 1970 Op. Att'y Gen. No. 70-116.

Appraisal to be updated to date of hearing before special master. - When condemnation is necessary, the appraiser should be instructed to update his appraisal to the date of the hearing before the special master; this appraisal should contemplate that the amount of the award will be paid into court by condemnor within ten days of such hearing by the special master, and this is the amount that the appraiser should be prepared to testify to if and when there is an appeal of the matter to a jury in the Superior Court by either party thereto. 1970 Op. Att'y Gen. No. 70-116.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 375-380, 409-411.

C.J.S. - 30 C.J.S., Eminent Domain, §§ 276-280, 292-305.

ALR. - Loss of right to contest assessment in proceeding for street or sewer improvement by waiver, estoppel, or the like, 9 A.L.R. 634 .

Loss of right to contest assessment in drainage proceeding by waiver, estoppel, or the like, 9 A.L.R. 842 .

Right of tenant to remove buildings or other fixtures as affecting tenant's right to compensation in respect to such improvements in condemnation proceeding, 75 A.L.R. 1495 .

Right to abandon and effect of abandonment of eminent domain proceedings, 121 A.L.R. 12 .

Increment to value, from project for which land is condemned, as a factor in fixing compensation, 147 A.L.R. 66 .

Abutting owner's right to damages or other relief for loss of access because of limited-access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Right to open and close argument in trial of condemnation proceedings, 73 A.L.R.2d 613.

Mandamus to compel ascertainment of compensation for property taken or for injuries inflicted under the power of eminent domain, 91 A.L.R.2d 991.

Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment, 92 A.L.R.2d 349.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

22-2-60. Fixing of time for hearing by assessors; notification of parties.

If by reason of delay in appointing assessors or other cause the hearing cannot be conducted at the time fixed in the original notice, the assessors shall fix the time for the hearing and shall notify the parties in writing of the time and place of the hearing.

(Ga. L. 1894, p. 95, § 17; Civil Code 1895, § 4673; Civil Code 1910, § 5223; Code 1933, § 36-501.)

JUDICIAL DECISIONS

Condemnor may dismiss proceedings before award has been made. Central Ga. Power Co. v. Nolan, 135 Ga. 443 , 69 S.E. 561 (1910).

Cited in Patterson v. State Hwy. Dep't, 201 Ga. 860 , 41 S.E.2d 260 (1947); James v. Housing Auth., 233 Ga. 447 , 211 S.E.2d 738 (1975).

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Eminent Domain, § 296.

22-2-61. Power of assessors to subpoena and to compel attendance; right of parties to be represented.

  1. The assessors shall have the same power to issue subpoenas and compel the attendance of witnesses as is vested in the superior court.
  2. Parties may be represented in person or by attorney before the assessors.

    (Ga. L. 1894, p. 95, §§ 18, 30; Civil Code 1895, §§ 4674, 4686; Civil Code 1910, §§ 5222, 5224; Code 1933, §§ 36-502, 36-503.)

JUDICIAL DECISIONS

Cited in Glidden Co. v. City of Collins, 189 Ga. 656 , 7 S.E.2d 266 (1940); O.K., Inc. v. State Hwy. Dep't, 213 Ga. 666 , 100 S.E.2d 906 (1957); Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 420.

C.J.S. - 30 C.J.S., Eminent Domain, § 296.

ALR. - Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213.

22-2-62. Evidence to be heard by assessors generally.

  1. The assessors shall hear all evidence offered by either party as to the value of the property or of any interest therein to be taken or used, the damages incurred by the owner of the property or of any interest therein, and the benefits to the owner accruing from the use of the property or interest by the condemnor.
  2. Prospective and consequential damages resulting from the taking may be considered if such damages are plain and appreciable.
  3. The increase of the value of the property or of any interest therein resulting from the proposed public improvement may be considered, but in no case shall such estimated increase deprive the owner of actual damages.
  4. In the estimation of the value of the property or other interest taken for public uses, such valuation need not be restricted to the agricultural or productive qualities of the property or interest, but inquiry may be made as to all other legitimate purposes to which the property or interest could be appropriated.

    (Orig. Code 1863, §§ 622, 623; Code 1868, §§ 686, 687; Code 1873, §§ 647, 648; Code 1882, §§ 647, 648; Ga. L. 1894, p. 95, § 18; Civil Code 1895, §§ 567, 568, 4674; Civil Code 1910, §§ 688, 689, 5224; Code 1933, §§ 36-503, 36-505, 36-506.)

Law reviews. - For comment on State Hwy. Dep't v. Thomas, 106 Ga. App. 849 , 128 S.E.2d 520 (1962), see 14 Mercer L. Rev. 447 (1963).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Owner entitled to compensation for land taken and for damage to remaining land. - When a county, in the exercise of its corporate powers, appropriates land of an individual, and as a result the premises of the owner are rendered less valuable, he is entitled to just compensation for the land so taken, and also for the injury thus sustained. Terrell County v. York, 127 Ga. 166 , 56 S.E. 309 (1906).

In condemnation proceedings the condemnor is liable not only for direct damages for the actual land taken for the public use, but in addition thereto for all consequential damages which naturally and proximately flow from the taking of the land to the remainder of the parcel or tract of land not taken as tend to diminish its market value. Georgia Power Co. v. McCrea, 46 Ga. App. 279 , 167 S.E. 542 (1933).

There are only two elements of damages to be considered in a condemnation proceeding: first, the market value of the property actually taken; second, the consequential damage that will 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. Simon v. Department of Transp., 245 Ga. 478 , 265 S.E.2d 777 (1980).

Law allows damages to property not actually appropriated in an eminent domain proceeding as consequential damages if such damages are shown. Justice v. State Hwy. Dep't, 100 Ga. App. 794 , 112 S.E.2d 307 (1959).

Remote and speculative or possible damages are not allowed. McCrea v. Georgia Power Co., 46 Ga. App. 276 , 167 S.E. 540 (1933).

Remote or merely speculative or possible damages are not allowed in considering the value of the land taken nor consequential damage to the land not taken. Southern Ry. v. Miller, 94 Ga. App. 701 , 96 S.E.2d 297 (1956).

The uses which may be considered in determining damages must be so reasonably probable as to have an effect on the present market value of the land; a purely imaginative or speculative value cannot be considered. State Hwy. Dep't v. Howard, 119 Ga. App. 298 , 167 S.E.2d 177 (1969).

Anything that actually enhances value of land must be considered in order to meet the constitutional demand that the owner be paid, before the taking, adequate and just compensation. DOT v. Arnold, 154 Ga. App. 502 , 268 S.E.2d 775 (1980).

Assessment of compensation covers all damages which result from proper construction, whether those damages were foreseen or not. Whipple v. County of Houston, 214 Ga. 532 , 105 S.E.2d 898 (1958).

It cannot be assumed in condemnation proceedings that there will be negligent construction or operation of the project so as to cause damage in excess of that which would naturally and proximately result from the construction and operation thereof. McCrea v. Georgia Power Co., 46 Ga. App. 276 , 167 S.E. 540 (1933).

Contiguity of parcels does not render the aggregate a tract. - The mere contiguity of several parcels of land belonging to one owner does not in itself render the lots in the aggregate an entire tract. Gaines v. City of Calhoun, 42 Ga. App. 89 , 155 S.E. 214 (1930).

Platting and subdivision does not necessarily destroy unity of tract. - The mere platting of a tract of land and its subdivision into vacant building lots does not necessarily destroy the oneness or unity of the entire property. Gaines v. City of Calhoun, 42 Ga. App. 89 , 115 S.E. 214 (1930).

Burden of proof is upon the condemnor, where the property has been taken or damaged, to establish by a preponderance of the evidence what amount of money constitutes just and adequate compensation. State Hwy. Bd. v. Shierling, 51 Ga. App. 935 , 181 S.E. 885 (1935).

Only issue before assessors or jury on appeal is amount of compensation to be paid, and neither the assessors nor a jury can determine whether the condemnor is proceeding legally; the remedy of the landowners is to apply to a court of equity to enjoin the illegal proceedings. Garden Parks v. Fulton County, 88 Ga. App. 97 , 76 S.E.2d 31 (1953).

Jurors are not absolutely bound to accept as correct opinions or estimates of witnesses as to the value of property, though uncontradicted by other testimony, but have the right to consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge, throwing light upon the question, and they may, by their verdict, fix either a lower or a higher value upon the property than that stated in the opinions or estimates of the witnesses. Southern v. Cobb County, 78 Ga. App. 58 , 50 S.E.2d 226 (1948).

Charge substantially in the language of this section and § 22-2-63 was not error. State Hwy. Bd. v. Coleman, 78 Ga. App. 54 , 50 S.E.2d 262 (1948).

Cited in Glidden Co. v. City of Collins, 189 Ga. 656 , 7 S.E.2d 266 (1940); State Hwy. Dep't v. Peavy, 77 Ga. App. 308 , 48 S.E.2d 478 (1948); Housing Auth. v. McDonald, 87 Ga. App. 392 , 74 S.E.2d 113 (1953); Georgia Power Co. v. Pittman, 92 Ga. App. 673 , 89 S.E.2d 577 (1955); Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959); O.K., Inc. v. State Hwy. Dep't, 213 Ga. 666 , 100 S.E.2d 906 (1957); United States of Am. v. Ivie, 163 F. Supp. 138 (N.D. Ga. 1957); Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959); Georgia Power Co. v. Faulk, 102 Ga. App. 141 , 115 S.E.2d 733 (1960); Southwell v. State Hwy. Dep't, 104 Ga. App. 479 , 122 S.E.2d 131 (1961); Fulton County v. Bailey, 107 Ga. App. 512 , 130 S.E.2d 800 (1963); State Hwy. Dep't v. Kaylor, 110 Ga. App. 46 , 137 S.E.2d 664 (1964); City of Jefferson v. Maddox, 116 Ga. App. 51 , 156 S.E.2d 553 (1967); State Hwy. Dep't v. Cantrell, 119 Ga. App. 241 , 166 S.E.2d 604 (1969); Pye v. State Hwy. Dep't, 226 Ga. 389 , 175 S.E.2d 510 (1970); State Hwy. Dep't v. AMOCO, 125 Ga. App. 260 , 187 S.E.2d 303 (1972); DOT v. Knight, 143 Ga. App. 748 , 240 S.E.2d 90 (1977); Smith v. DeKalb County, 184 Ga. App. 628 , 362 S.E.2d 435 (1987).

Value of Property Taken
1. In General

Market value of land for all available purposes is true measure of compensation. - Where property is taken under power of eminent domain for a public use, its market value for all purposes for which the property is available is the true measure of the owner's compensation, the value of the property to the condemnor for the specific purpose for which the property is taken is not the basis for measuring the amount of compensation payable to the owner. State Hwy. Bd. v. Shierling, 51 Ga. App. 935 , 181 S.E. 885 (1935).

Definition of market value of property. - Market value of property is what it will bring when sold for cash by a person ready and willing to sell, but under no obligation to sell, and when bought by a person ready and willing to buy, but under no obligation to buy. Housing Auth. v. Spink, 91 Ga. App. 72 , 85 S.E.2d 80 (1954).

There are three recognized techniques for determining market value: replacement cost new less depreciation, income, and comparable sales. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Lost profits may be used as means of awarding just and adequate compensation because the income approach necessarily takes into account what future earnings would be were the property interest not extinguished. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Improvements on land are proper subjects for independent valuation in consideration of the just and adequate compensation for the total property taken. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

Existing zoning regulations can be pertinent in a condemnation proceeding. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

Consideration of zoning changes. - In determining value, jury may consider existing zoning and possible or probable future zoning changes which are sufficiently likely to have appreciable influence upon present market value. McDaniel Enters., Inc. v. Gwinnett County, 162 Ga. App. 419 , 291 S.E.2d 738 (1982).

Privacy of land factor in fair market value. - Privacy afforded by location of realty, like a mountaintop, riverfront or oceanfront location, can also be a factor in determining market value of such realty. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348 , 299 S.E.2d 594 (1983).

A panoramic or scenic view afforded by certain realty is an element to be included in assessing value. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348 , 299 S.E.2d 594 (1983).

Condemnee can recover compensation for loss of use of his property during period of construction by the county, based on its rental value during that time, if the jury first finds that a loss of use had occurred and that the condemnee had taken reasonable steps to avoid such loss. DeKalb County v. Cowan, 151 Ga. App. 753 , 261 S.E.2d 478 (1979).

Ascertaining value of land taken by subtracting value of land remaining from value of whole land before taking is error, since this permits the consideration of consequential damages or benefits in arriving at the value of the land remaining and may thus work harm to either the condemnor or the condemnee. Fulton County v. Power, 109 Ga. App. 783 , 137 S.E.2d 474 (1964).

Evidence held inadmissible to show value of condemnee's property. - Evidence by a witness for the condemnee that an unspecified number of undescribed parcels of property in a block adjacent to that wherein was located the land sought to be condemned sold for a specified average price per square foot was inadmissible to show the value of the condemnee's property. Fulton County v. Cox, 99 Ga. App. 743 , 109 S.E.2d 849 (1959).

Trial court erred in allowing testimony of the residential property's value in condemnation proceeding since the testimony provided speculative valuations based on the property's use as a commercial property at the time of the taking. Ga. Transmission Corp. v. Barron, 255 Ga. App. 645 , 566 S.E.2d 363 (2002).

Evidence of factors which owner would present to prospective buyer properly admitted. - In determining market value of land taken or damaged in an eminent domain proceeding, it is proper for the trial court to admit proof of all factors which an owner could reasonably urge upon a prospective purchaser which could tend to favorably influence the person. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348 , 299 S.E.2d 594 (1983).

Evidence of property's highest and best use as convenience store properly admitted. - Trial court did not err in denying motion to strike the testimony of condemnee's expert witness that the condemned property's highest and best use would be as a convenience store because of the property's location in relation to nearby industry and residential development, where the testimony was based on relevant facts concerning existing local population and industry. DOT v. Kanavage, 183 Ga. App. 143 , 358 S.E.2d 464 (1987).

As to effect of moving old road, and establishing new, as increasing and decreasing value, see Mallory v. Morgan County, 131 Ga. 271 , 62 S.E. 179 (1908).

Instructions. - Although charge restricting jury, in determining value of property, to uses which may be lawfully made of it at time of taking as set out in zoning ordinances then in effect was incorrect, there was no harm since the condemned property was zoned for industrial use at the time of taking and appellant contended that the property's highest and best use was industrial. McDaniel Enters., Inc. v. Gwinnett County, 162 Ga. App. 419 , 291 S.E.2d 738 (1982).

Instruction that the mere possibility that land might be used for a certain purpose is not enough to authorize a jury to consider the effect of such a possibility in determining the value of land. At least a reasonable probability must be shown by competent evidence to authorize consideration of such a prospective use in determining value. Elliott v. Henry County Water & Sewerage Auth., 238 Ga. App. 15 , 517 S.E.2d 545 (1999).

2. Value for All Purposes

Prospective value of land for any purpose may be considered. - In arriving at the value of the land taken under condemnation proceedings, the value of the land, including its prospective value for any purpose, may be considered. Georgia Power Co. v. Carson, 46 Ga. App. 612 , 167 S.E. 902 (1933); State Hwy. Bd. v. Coleman, 78 Ga. App. 54 , 50 S.E.2d 262 (1948).

All elements and uses of the land may be taken into consideration to determine the market value of the land taken and the consequential damages to the land not taken. However, under this sort of procedure, a witness may not be permitted to testify separately as to the value of each element. Southern Ry. v. Miller, 94 Ga. App. 701 , 96 S.E.2d 297 (1956).

Including value for specific use for which condemnor takes land. - The availability of property for the specific use for which it was taken and to which it is put by the condemnor is an element to be considered in estimating the value to the owner for all purposes for which the property is available. State Hwy. Bd. v. Shierling, 51 Ga. App. 935 , 181 S.E. 885 (1935).

And regardless of probability that other uses will be made of land. - This section clearly states that the suitability of land for other uses, and not the probability that other uses will be made of the land, is the criterion for estimating the value of condemned land. Moore v. State Hwy. Dep't, 221 Ga. 392 , 144 S.E.2d 747 (1965); State Hwy. Dep't v. Howard, 119 Ga. App. 298 , 167 S.E.2d 177 (1969).

The test for estimating the value of land under this section is whether the land sought to be condemned could be used for other purposes, and not whether the land would be used for other purposes. Schoolcraft v. DeKalb County, 126 Ga. App. 101 , 189 S.E.2d 915 (1972).

The test is whether the land is legitimately usable for other purposes, not whether such use is certain. Possible future uses will not influence the present market value of a tract unless there is a demand for such uses or they are otherwise reasonably probable. Georgia Power Co. v. Cole, 141 Ga. App. 806 , 234 S.E.2d 382 (1977).

Charge on theory of reasonable probable use in a condemnation proceeding was erroneous because it allowed the jury to determine the value of the land on the date of the taking without ascribing any value to subterranean limestone deposits. Gunn v. DOT, 222 Ga. App. 684 , 476 S.E.2d 46 (1996).

Use of charge allowing consideration of other uses of land. - Absent any evidence authorizing the jury to find that property being condemned was suitable for other uses or from which it might reasonably infer its suitability for other uses, a charge that the jury might, in estimating its fair market value, consider other uses to which it might be devoted was error. State Hwy. Dep't v. Whitehurst, 109 Ga. App. 737 , 137 S.E.2d 371 (1964), later appeal, 112 Ga. App. 877 , 146 S.E.2d 919 (1966).

Evidence insufficient to require charge on valuation for all purposes. - Where 3.673 acres of a 40-acre tract of land plus a small drainage area was being condemned by the state highway department, evidence that all of the 40 acres, except about two acres where the owner's home stood, was in improved pasture, and part of the land taken was a narrow strip along a road on which the dwelling house of the owner faced, does not authorize an inference that the land taken was suitable for purposes other than agricultural so as to authorize a charge based on subsection (d) of this section. State Hwy. Dep't v. Cronic, 114 Ga. App. 348 , 151 S.E.2d 486 (1966).

Failure to give instruction on valuation for all purposes held erroneous. - Where there is some testimony that the condemned land is residential property and that there is an apartment complex and commercial property in the immediate vicinity it is error to refuse to give an instruction on valuation of the property for all purposes when requested in writing. Schoolcraft v. DeKalb County, 126 Ga. App. 101 , 189 S.E.2d 915 (1972).

There being evidence from which the jury would be authorized to conclude that the property in question has reasonable potential for a use other than for that to which it is presently being put, it is error to refuse to give the following written request to charge: "In the estimation of value of land taken for public uses, it is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated. The test in such cases is whether the land could be used for other purposes, not whether the land would be used for other purposes." DOT v. Katz, 169 Ga. App. 310 , 312 S.E.2d 635 (1983).

There is no error in charging subsection (d) verbatim although there was no evidence of "agricultural qualities" of the property. DeKalb County v. Queen, 135 Ga. App. 307 , 217 S.E.2d 624 (1975).

3. Unique Property

"Unique property" defined. - Unique property is simply property which must be valued by something other than the fair market value standard because there is no general market for such property. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348 , 299 S.E.2d 594 (1983).

Unique value is pecuniary value of certain property to its present owner, in a situation where he can find no other property equally well suited to his use, and there is no taker on the open market at the pecuniary value of the property to him. In such a case there is no market value, which presupposes a willing-buyer willing-seller situation. Housing Auth. v. Troncalli, 111 Ga. App. 515 , 142 S.E.2d 93 (1965).

Since valuing property at its fair market value presupposes a willing buyer and a willing seller, properties are "unique" such that fair market value will not afford just and adequate compensation when they are not of a type generally bought or sold in the open market. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Private riverfront land not unique. - Neither "privacy," which is inherent in ownership of all property, nor the fact that the condemned land was "riverfront" property, would authorize a charge on the condemned property having a value "peculiar" to the owner, or that the realty was "unique." Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 355 , 299 S.E.2d 592 (1983).

Whether or not property is unique is a jury question. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

Whether land taken or damaged in an eminent domain proceeding is unique or peculiar is a jury question. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348 , 299 S.E.2d 594 (1983).

"Unique" property is measured by variety of nonfair market methods of valuation, including the cost and income methods. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Recovery beyond fair market value for property of unique value. - The measure of the condemnee's recovery is the fair market value of the property taken, and a condemnee can only recover for the value that the property has to him over and above fair market value in such cases where the evidence shows that the property had some unique and special economic, not merely sentimental, value to the condemnee alone. Fulton County v. Cox, 99 Ga. App. 743 , 109 S.E.2d 849 (1959).

Where there is some evidence tending to show that the property to be taken has a unique suitability, due to its location, for the purpose to which it was being put, it is not error to instruct the jury that they are not restricted to market value in determining just and adequate compensation. DeKalb County v. Cowan, 151 Ga. App. 753 , 261 S.E.2d 478 (1979).

Recovery of business losses. - Business losses are recoverable as a separate item only if the property is "unique." DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

When a business belongs to the landowner, total destruction of the business at the location must be proven before business losses may be recovered as a separate element of compensation. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

When the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is not remote or speculative. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

The damages sustained by a business are separate and apart from the damages sustained by the real estate on which it is located. Old S. Bottle Shop, Inc. v. Department of Transp., 175 Ga. App. 295 , 333 S.E.2d 127 (1985).

Instruction on unique value erroneous unless evidence supports finding of such value. - An instruction to the jury in a condemnation case which inferentially authorizes them to award damages to the condemnee for the land taken based on the peculiar value of the land to the condemnee alone, as distinguished from its market value, generally is error where there is no evidence to authorize a finding that the land taken had any such peculiar value to the condemnee apart from its market value. State Hwy. Dep't v. Martin, 111 Ga. App. 428 , 142 S.E.2d 84 (1965).

4. Comparable Sales and Offers of Purchase

Evidence of sale of similar property admissible. - Evidence of a sale of similar property, located near that condemned, at or near the time the condemnation proceeding was instituted, is admissible. Housing Auth. v. Spink, 91 Ga. App. 72 , 85 S.E.2d 80 (1954).

On a question of the value of land sought to be condemned, it is competent to introduce evidence of sales of property similar to that in question, made at or near the time of the taking. The exact limit either of similarity or difference, or of nearness or remoteness in point of time is difficult, if not impossible, to prescribe by any arbitrary rule, but must to a large extent depend on the location and the character of the property and the circumstances of the case. Fulton County v. Cox, 99 Ga. App. 743 , 109 S.E.2d 849 (1959).

Judicial determination of similarity required. - The introduction of evidence of particular sales is permitted after such evidence has been qualified by evidence of the similarity of the comparable property with the property being condemned or taken. After the introduction of such preliminary evidence of similarity, the trial judge must determine whether the comparable property is sufficiently similar or nearly like the property being condemned, and whether the time and manner of the particular sale are truly illustrative of the value of the property being condemned. Fulton County v. Cox, 99 Ga. App. 743 , 109 S.E.2d 840 (1959).

Generally, evidence of sales of property similar to that in question made at or near the time of the taking is competent evidence and may be considered to throw light on the issue of the value of the property sought to be condemned; however, the determination as to whether or not the witness testified as to comparable properties similar to that in question is within the sound discretion of the trial judge. Oglethorpe Power Corp. v. Seasholtz, 157 Ga. App. 723 , 278 S.E.2d 429 (1981).

Comparability of sales upon which expert value witness bases his opinion goes to weight of testimony, not its admissibility. Merritt v. Department of Transp., 147 Ga. App. 316 , 248 S.E.2d 689 (1978).

Although unaccepted offers to purchase do not constitute evidence of market value, they are admissible where offered as partial basis for opinion testimony as to value. Merritt v. Department of Transp., 147 Ga. App. 316 , 248 S.E.2d 689 (1978).

Oral and not binding offers cast no light upon value. - Oral and not binding offers are so easily made and refused in a mere passing conversation, and under circumstances involving no responsibility on either side, as to cast no light upon the question of value. Southern Ry. v. Miller, 94 Ga. App. 701 , 96 S.E.2d 297 (1956).

Where an offer to purchase excludes on its face the property to be taken and thus constitutes merely an offer to purchase the remainder, and another offer, while it includes the property to be taken, appears to be nothing more than a mere oral expression of willingness to purchase, unaccompanied by any proposed terms, any indication of ability to perform, or anything else which might indicate that it was a serious and bona fide offer, such "offers" are too susceptible of fabrication to be allowed into evidence even as a partial basis of opinion testimony. Merritt v. Department of Transp., 147 Ga. App. 316 , 248 S.E.2d 689 (1978).

Sales of land to condemning authorities are inadmissible as evidence in condemnation proceedings on issue of value of land sought to be condemned. Oglethorpe Power Corp. v. Seasholtz, 157 Ga. App. 723 , 278 S.E.2d 429 (1981).

Prospective and Consequential Damages

Measure of damages for injury to adjoining property is the diminution in the market value of the property. Terrell County v. York, 127 Ga. 166 , 56 S.E. 309 (1906).

The measure of the consequential damages to adjoining property as a result of the condemnation of land for public purposes is the diminution of the value of the adjoining property measured by the difference between the fair market value of the property immediately before the condemnation and immediately after the condemnation. State Hwy. Bd. v. Coleman, 78 Ga. App. 54 , 50 S.E.2d 262 (1948).

The question of consequential damages involves the consideration of the value of the remaining land before the taking and its value after the taking and a determination of whether or not there was a difference in the value before and after the taking. Sumner v. State Hwy. Dep't, 110 Ga. App. 646 , 139 S.E.2d 493 (1964); Simon v. Department of Transp., 245 Ga. 478 , 265 S.E.2d 777 (1980).

Consequential benefits to remaining land may be considered to offset consequential damages. Fulton County v. Power, 109 Ga. App. 783 , 137 S.E.2d 474 (1964).

Consequential benefits to remaining lands may be shown only as an offset against consequential damages and may not be used as an offset against the value of the land actually taken. Merritt v. Department of Transp., 147 Ga. App. 316 , 248 S.E.2d 689 (1978).

Relevant factors in determining consequential damage to remaining property. - That condemned land produces items which may be sold in the market may be shown as affecting its market value. The presence or absence of water on the land may be shown in like manner. The extent of the land's productive capacity and the amount and nature of available water is relevant. If these are removed or lessened by the improvements made, that is relevant in showing consequential damage to the property remaining. State Hwy. Dep't v. Harrison, 115 Ga. App. 349 , 154 S.E.2d 723 , overruled on other grounds, Willis v. Hill, 116 Ga. App. 848 , 159 S.E.2d 145 (1967).

Evidence of noise and other elements allowed in determining consequential damages. - If shown to affect adversely the value and use of the condemnee's remaining property, evidence of noise and other elements may be taken into consideration by the jury in determining consequential damages. State Hwy. Dep't v. Augusta Dist. of N. Ga. Conference of Methodist Church, 115 Ga. App. 162 , 154 S.E.2d 29 (1967).

It is error to admit evidence of diminution in value of adjoining property without evidence of fair market value before the condemnation, for such evidence is a mere conclusion of the witness without foundations of fact for the consideration of the jury. State Hwy. Bd. v. Coleman, 78 Ga. App. 54 , 50 S.E.2d 262 (1948).

Damage to one contiguous parcel determinable without reference to others. - Where adjoining or contiguous parcels of land belonging to the same owner are put to separate and distinct uses, and do not together constitute one entire tract, damages to one of the parcels, as a result of the performance of public work in the neighborhood, is determinable without reference to the effect of the work upon the adjoining land. Gaines v. City of Calhoun, 42 Ga. App. 89 , 155 S.E. 214 (1930).

Damage to portion of tract balanced against benefit to whole. - Where a tract of land having a value and a peculiar utility as an entirety is affected by public work, the owner of the land, for the purpose of recovering damages resulting from the performance of the work, cannot sever from the entire tract a portion of it which has been peculiarly damaged and recover damages without reference to the benefits accruing to the entire tract by virtue of the performance of the work. Gaines v. City of Calhoun, 42 Ga. App. 89 , 155 S.E. 214 (1930).

Damages and judgment bar recovery of consequential damages except those resulting from negligent construction. - Since this section and § 22-2-63 plainly provide that the appraisers in proceedings to condemn private property for public purposes shall assess actual damages for the property taken and consequential damages to the property not taken, an award of damages and judgment of condemnation bar recovery of consequential damages except such as result from negligent and improper construction. Whipple v. County of Houston, 214 Ga. 532 , 105 S.E.2d 898 (1958).

Proper construction not grounds for damages to remainder of property. - Construction that is done with due care and is proper is not grounds for recovery for damages to the remainder of the property of the condemnee. Whipple v. County of Houston, 214 Ga. 532 , 105 S.E.2d 898 (1958).

Mistaken theory that construction would improve, not damage, remaining property. - Where, due to a mistake of fact unmixed with negligence, the condemnation proceeding for a public road was conducted throughout upon the theory that the road would be paved at approximately grade level, thus improving rather than damaging the remaining abutting property, and there was nothing to indicate that a fill of from 25 to 40 feet would be made in front of the remaining property which would damage it in the amount of approximately $20,000.00, a petition in equity, alleging these facts and alleging that the mistake prevented the owners from proving this consequential damage, alleged a cause of action to set aside the award and the judgment of condemnation and to recover the full damages. Whipple v. County of Houston, 214 Ga. 532 , 105 S.E.2d 898 (1958).

Valuation of adjacent land taken for bridge and roads. - It is proper, in order to arrive at just and adequate compensation in determining the value of adjacent land taken for the bridge and roads, that its prospective value as a bridge site and its present value as a ferry site may be taken into the calculation. Mitchell County v. Hudspeth, 151 Ga. 767 , 108 S.E. 305 (1921).

Where land is taken for a public highway and bridge over a stream, the owners are not entitled to have the diminution or destruction of the profits of their ferry, due to the erection of the bridge, considered in determining the value of the property taken by the state for its highway and the bridge, when the franchise of the owners to operate the ferry is not exclusive. State Hwy. Bd. v. Willcox, 168 Ga. 883 , 149 S.E. 182 (1929).

Condemnor's testimony, standing alone, held inadmissible on question of consequential damages. - Where a limited access highway is condemned by the State, which highway cuts off several acres from the remainder of the land of the condemnee leaving those several acres without any access thereto, testimony offered by the condemnor that with access there would be no damage to the isolated land, standing alone, is inadmissible and without probative value on the question of consequential damages to those several acres without access. State Hwy. Dep't v. Howard, 124 Ga. App. 76 , 183 S.E.2d 26 (1971).

Evidence admissible as to effect of condemnation on landowner's business. - In action for value of property taken by the Department of Transportation, evidence which was admissible to reflect how the condemnation had adversely affected landowner's business had probative value and was admissible for consideration by the jury. DOT v. Delta Mach. Prods. Co., 157 Ga. App. 423 , 278 S.E.2d 73 (1981).

Evidence insufficient to require charge on consequential benefits. - See Garden Parks v. Fulton County, 88 Ga. App. 97 , 76 S.E.2d 31 (1953).

OPINIONS OF THE ATTORNEY GENERAL

Measure of damages for property taken is pecuniary loss to owner. - The measure of damages for property taken by the right of eminent domain, being compensatory in its nature, is the pecuniary loss sustained by the owner, taking into consideration all relevant factors; ordinarily this loss is represented by the fair market value of the property interest taken, but it may be fair and reasonable value of the property taken if in fact the market value would not coincide with the actual value thereof. 1958-59 Op. Att'y Gen. p. 271.

And is ordinarily measured by market value. - Ordinarily, when an entire parcel of property is taken, or an entire leasehold interest is taken, the measure of the damages is the "market value" of the land or leasehold interest as the case might be; market value has been defined as the price which may be paid by one wishing but not required to buy, to one wishing but not required to sell. 1958-59 Op. Att'y Gen. p. 271.

Assessment of consequential damages. - In assessing consequential damages, the difference would lie in the valuation of the land which remains after condemnation, as compared with the value of that fragment of land before the condemnation was commenced; in considering this "damage," the assessors or jury would be bound to deduct from the whole damage, any increase which might result from the improvement respecting the sales value or market value of the tract not taken. 1958-59 Op. Att'y Gen. p. 273.

Payment of taxes on land taken by eminent domain. - The payment of city or county taxes is not a proper element of damages in a condemnation case; the payment of property taxes is a responsibility of the landowner only so long as he, in fact, owns the property. The property owner or condemnee would be responsible for payment of taxes up to the date of taking; after that time, the responsibility for the payment of these taxes would lie upon the condemning body, if in fact that body is an entity which would have the responsibility for payment of these taxes. 1969 Op. Att'y Gen. No. 69-494.

Cost of moving personal property not an element of damage. - The cost of moving personal property from real estate which is taken for public purposes cannot be considered as an element of damage, as such; however, the cost of removal of either fixtures, buildings, or personalty, especially when used for business purposes, may be considered as one of the factors entering into a determination of the value of the real estate to the condemnee from whom it is taken. 1958-59 Op. Att'y Gen. p. 271.

But may be illustrative of damage done by taking. - The cost of moving personal property may in many instances, be evidential as to, or illustrative of, the damage done to such personal property by the taking; such damage must be paid by the authority which so takes it for public purposes. 1958-59 Op. Att'y Gen. p. 276.

Where area taken for right of way intersects building on tract involved, i.e., a portion of the building lies on land which is taken, and a portion of the building lies on land which is not taken, that portion of the building which extends upon the right of way may be severed if it is practicable to do so without destruction of the building; if severance would result in destruction, then the measure of damage to the building is its full value. 1958-59 Op. Att'y Gen. p. 273.

In circumstances where a condemnation causes the intersection of a building by the line drawn between the land taken and the land not taken, where it is impossible to sever the building and the whole building would be destroyed, the value of the land without the building taken would be charged against the condemnor; the true market value of the remaining portion of the condemnee's land without the building, of course, it being destroyed, would be compared with the value of that tract before taking. 1958-59 Op. Att'y Gen. p. 273.

Expense of removing facilities from railroad right-of-way. - There is no reason why the State Highway Department (now Department of Transportation) may not bear the expense (or that part which is not borne by the railroad or the United States government) of the temporary and permanent removal of facilities located on a railroad right of way. 1957 Op. Att'y Gen. p. 132.

No distinction can be drawn, as to the obligation to pay the cost of removal of facilities on a right of way, between temporary relocations and permanent relocations. 1957 Op. Att'y Gen. p. 132.

Powder company which is forced to move the location of its place of business because a highway is constructed too near the place of business is entitled to compensation for certain moving expenses. 1957 Op. Att'y Gen. p. 137.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, § 151. 27 Am. Jur. 2d, Eminent Domain, §§ 266-296, 310-320, 357-374, 419-442.

C.J.S. - 25A C.J.S., Damages, §§ 2, 4. 29A C.J.S., Eminent Domain, §§ 110-185, 271-275. 30 C.J.S., Eminent Domain, §§ 276-278.

ALR. - Profits derived from business conducted on property taken by eminent domain as evidence of market value, 7 A.L.R. 163 .

Right under constitutional provision against taking or damaging, to recover in other than an eminent domain proceeding, for consequential damages to property no part of which is taken, 20 A.L.R. 516 .

Limitation applicable to action for consequential damage as result of taking or damaging of property for public use, 30 A.L.R. 1190 , 139 A.L.R. 1288 .

Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98 .

Measure of damages or compensation where property is taken to widen street, 64 A.L.R. 1513 .

Income as an element in determining value of property taken in eminent domain, 65 A.L.R. 455 .

Measure and items of compensation or damages for flooding property under the right of eminent domain, 106 A.L.R. 955 .

Right of property owner to compensation for diversion of traffic by relocation or rerouting of highway, 118 A.L.R. 921 .

Elements and measure of compensation for power lines or other wire lines over private property, 124 A.L.R. 407 .

Special value or adaptability of property for purpose for which it is taken, as an element of, or matter for consideration in fixing, damages in condemnation proceedings, 124 A.L.R. 910 .

Distinction between income or profits from business on land and income or profits from use of land, as affecting admissibility of evidence in that regard on question of damages in eminent domain, 134 A.L.R. 1125 .

Deduction of benefits in determining compensation or damages in eminent domain, 145 A.L.R. 7 .

Increment to value, from project for which land is condemned, as a factor in fixing compensation, 147 A.L.R. 66 .

Frustration of contractual rights as basis of claim for compensation where another's real property is taken in exercise of eminent domain, 152 A.L.R. 307 .

Price at which one whose land is taken or damaged under power of eminent domain has sold, contracted to sell, or optioned land in question to third person as evidence of its market value in condemnation proceeding or related action for damages, 155 A.L.R. 262 .

What physical construction amounts to a change of grade within statute relating to award of damages, 156 A.L.R. 416 .

Determination in eminent domain proceedings of market value of land as affected by mineral deposits or similar conditions, 156 A.L.R. 1416 .

Are different estates or interests in real property taken under eminent domain to be valued separately, or entire property to be valued as a unit and the amount apportioned among separate interests, 166 A.L.R. 1211 .

Eminent domain: cost of repairs and improvements on property taken, as evidence of its value, 172 A.L.R. 236 .

Eminent domain: valuation of land and improvements and fixtures thereon separately or as unit, 1 A.L.R.2d 878.

Elements and measure of lessee's compensation for taking or damaging leasehold in eminent domain, 3 A.L.R.2d 286.

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Admissibility in condemnation proceedings of opinion evidence as to probable profits derivable from land condemned if devoted to particular agricultural purposes, 16 A.L.R.2d 1113.

Abutting owner's right to damages or other relief for loss of access because of limited-access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.

Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use, 29 A.L.R.5th 36.

Counsel's use, in trial of condemnation proceeding, of chart, diagram or blackboard, not introduced in evidence, relating to damages or the value of the property condemned, 80 A.L.R.2d 1270.

Admissibility on issue of value of real property of evidence of sale price of other real property, 85 A.L.R.2d 110.

Bad reputation of condemned property derived from its illegal use for gambling, prostitution, or the like, as factor decreasing compensation or damages, 87 A.L.R.2d 1156.

Changes in purchasing power of money as affecting compensation in eminent domain proceedings, 92 A.L.R.2d 772.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901.

Eminent domain: deduction of benefits in determining compensation or damages in proceedings involving opening, widening, or otherwise altering highway, 13 A.L.R.3d 1149.

Propriety and effect, in eminent domain proceeding, of argument or evidence as to landowner's unwillingness to sell property, 17 A.L.R.3d 1449.

Propriety and effect of argument or evidence as to financial status of parties in eminent domain proceeding, 21 A.L.R.3d 936.

Existence of restrictive covenant as element in fixing value of property condemned, 22 A.L.R.3d 961.

Eminent domain: admissibility, on issue of value of condemned real property, of rental value of other real property, 23 A.L.R.3d 724.

Admissibility of evidence of proposed or possible subdivision or platting of condemned land on issue of value in eminent domain proceedings, 26 A.L.R.3d 780.

Measure of damages for condemnation of cemetery lands, 42 A.L.R.3d 1314.

Traffic noise and vibration from highway as element of damages in eminent domain, 51 A.L.R.3d 860.

Good will or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking, 59 A.L.R.3d 488.

Eminent domain: consideration of fact that landowner's remaining land will be subject to special assessment in fixing severance damages, 59 A.L.R.3d 534.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Assemblage or plottage as factor affecting value in eminent domain proceedings, 8 A.L.R.4th 1202.

Eminent domain: measure and elements of lessee's compensation for condemnor's taking or damaging of leasehold, 17 A.L.R.4th 337.

Unaccepted offer for purchase of real property as evidence of value, 25 A.L.R.4th 571.

Unaccepted offer to sell or buy comparable real property as evidence of value of property in issue, 25 A.L.R.4th 615.

Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.

Unaccepted offer to sell or listing of real property as evidence of its value, 25 A.L.R.4th 983.

Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213.

Eminent domain: compensability of loss of visibility of owner's property, 7 A.L.R.5th 113.

22-2-63. Manner of assessment.

The assessors, or a majority of them, shall assess the value of the property or interest taken or used, or the damage done, shall assess the consequential damages to the property or interests not taken, and shall deduct from such consequential damages the consequential benefits to be derived by the owner from the operation of the franchise by the condemnor or from the carrying on of the business of the condemnor, provided that the consequential benefits assessed shall in no case exceed the consequential damages assessed; provided, further, that nothing in this Code section shall be so construed as to deprive the owner of the actual value of his property or interest so taken or used.

(Ga. L. 1894, p. 95, § 19; Civil Code 1895, § 4675; Civil Code 1910, § 5225; Code 1933, § 36-504.)

Law reviews. - For comment on State Hwy. Dep't v. Lumpkin, 222 Ga. 727 , 152 S.E.2d 557 (1966), see 3 Ga. St. B.J. 483 (1967).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Damage construed. - The word "damaged," has a broader meaning than the word "taken," and is designed to impose liability on a condemnor for consequential injuries to property which would not otherwise exist. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348 , 299 S.E.2d 594 (1983).

Condemnor liable for both direct and consequential damages. - In condemnation proceedings the condemnor is liable not only for direct damages for the actual land taken for the public use, but in addition thereto for all consequential damages which naturally and proximately flow from the taking of the land to the remainder of the parcel or tract of land not taken as tend to diminish its market value. Georgia Power Co. v. McCrea, 46 Ga. App. 279 , 167 S.E. 542 (1933).

There are two elements to be considered in connection with the damages in condemnation cases, the actual value of the land taken and the consequential damage or consequential benefit to the remaining land. Fulton County v. Power, 109 Ga. App. 783 , 137 S.E.2d 474 (1964).

Just and adequate compensation. - In an eminent domain proceeding, the "just and adequate compensation" due a condemnee is "the value" of the land taken, plus any consequential damages to the remainder if there is a partial taking, which may not be less than "the actual value" of the property taken or damaged. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348 , 299 S.E.2d 594 (1983).

Law allows damages to property not actually appropriated in an eminent domain proceeding as consequential damages if such damages are shown. Justice v. State Hwy. Dept., 100 Ga. App. 794 , 112 S.E.2d 307 (1959).

And consequential damages must be recovered in condemnation proceeding. - Consequential damages to property not taken in a condemnation proceeding resulting from the proper construction and maintenance of the object for which the property is taken must be recovered, if recovered at all, in the condemnation proceeding. State Hwy. Dep't v. Kaylor, 110 Ga. App. 46 , 137 S.E.2d 664 (1964).

Direct and consequential damages to be figured separately. - In any eminent domain case the evidence and instructions to the jury should be such that they are enabled to figure separately the value of the land or interest therein which is taken and the consequential damages to the land not taken, the latter of course balanced against any consequential benefits and by adding the two figures return a lump sum verdict which includes both items of depreciated value to the landowner. Georgia Power Co. v. Sinclair, 122 Ga. App. 305 , 176 S.E.2d 639 (1970).

Remote and speculative or possible damages are not allowed. McCrea v. Georgia Power Co., 46 Ga. App. 276 , 167 S.E. 540 (1933).

Remote or merely speculative or possible damages are not allowed in considering the value of the land taken nor consequential damage to the land not taken. Southern Ry. v. Miller, 94 Ga. App. 701 , 96 S.E.2d 297 (1956).

Value of land taken and consequential damages are matters of opinion. - The question of the value of the land taken and condemned and the amount of consequential damages to be assessed against the condemnor for the remaining land are matters of opinion. Derrick v. Rabun County, 107 Ga. App. 229 , 129 S.E.2d 583 (1963).

Measure of damages for property taken is pecuniary loss sustained by owner, taking into consideration all relevant factors. Ordinarily this loss is represented by the fair market value of the property interest taken, but it may be the fair and reasonable value of the property taken if in fact the market value would not coincide with the actual value thereof. Housing Auth. v. Savannah Iron & Wire Works, Inc., 91 Ga. App. 881 , 87 S.E.2d 671 (1955).

Assessment of compensation covers all damages which result from proper construction, whether those damages are foreseen or not. Whipple v. County of Houston, 214 Ga. 532 , 105 S.E.2d 898 (1958).

Only direct damages allowed where legal improvements properly erected and maintained. - Where the public authorities properly erected and properly maintain the improvements authorized by law, the only right of action which is maintainable is that conferred by state constitutional provision; it does not sound in tort, and the recovery permitted is strictly limited to the direct damage inflicted by diminishing the market value of the property damaged, as measured by the difference in its market value before and immediately after the construction of the public works, excluding all consequential damages subsequently accruing, such as might be recoverable in an action sounding in tort, based on the maintenance of a continuing, abatable nuisance. Felton v. State Hwy. Bd., 51 Ga. App. 930 , 181 S.E. 506 (1935).

It cannot be assumed in condemnation proceedings that there will be negligent construction or operation of the project so as to cause damage in excess of that which would naturally and proximately result from the construction and operation thereof. McCrea v. Georgia Power Co., 46 Ga. App. 276 , 167 S.E. 540 (1933).

Contiguity of parcels does not render the aggregate a tract. - The mere contiguity of several parcels of land belonging to one owner does not in itself render the lots in the aggregate an entire tract. Gaines v. City of Calhoun, 42 Ga. App. 89 , 155 S.E. 214 (1930).

Platting and subdivision does not necessarily destroy unity of tract. - The mere platting of a tract of land and its subdivision into vacant building lots does not necessarily destroy the oneness or unity of the entire property. Gaines v. City of Calhoun, 42 Ga. App. 89 , 115 S.E. 214 (1930).

Assessment by majority of assessors sufficient. - It is not necessary to the validity of an assessment in a condemnation proceeding that all three of the assessors agree upon a valuation. A majority is sufficient. Cable v. State Hwy. Bd., 208 Ga. 593 , 68 S.E.2d 564 (1952).

Assessment made by two assessors in absence of third cannot be collaterally attacked in a suit for injunction. If the assessment is irregular or erroneous, it must be vacated and set aside in a direct attack upon the award. Cable v. State Hwy. Bd., 208 Ga. 593 , 68 S.E.2d 564 (1952).

In a proceeding to condemn only a portion of a tract of land the only question to be determined by the jury is the amount which the condemnor should pay as just and adequate compensation for the part taken and consequential damages, if any, to the remaining portion of the tract, as such damages may be offset, but not exceeded, by consequential benefits. Alabama Power Co. v. Chandler, 217 Ga. 550 , 123 S.E.2d 767 (1962).

Damages allowed for loss of right of access. - Where a street upon which a lot abuts is closed by an obstruction at an intersecting street, which, as respects the lot, makes the street upon which it abuts a cul-de-sac, although the obstruction is neither immediately in front of the lot nor touches the lot, and the obstruction thereby materially diminishes and curtails the right of the owner to the free and uninterrupted use of the street in front of the lot, as a means of access to and from different parts of the city, it constitutes a special damage to the lot, different in kind from that inflicted upon the community in general, and the owner has a right of action in damages therefor. Felton v. State Hwy. Bd., 51 Ga. App. 930 , 181 S.E. 506 (1935).

Where a highway or roadway to which the condemnee has a right of access is condemned as part of a limited access highway the condemnor must necessarily pay for the taking of the right of access. State Hwy. Dep't v. Ford, 112 Ga. App. 270 , 144 S.E.2d 924 (1965).

But not for easement to and from limited access highway. - Where land is condemned for use as a new limited access highway the condemnee is not entitled to damages, actual or consequential, for lack of access to said new highway by reason of any rights of easement for ingress and egress to and from said highway. State Hwy. Dep't v. Ford, 112 Ga. App. 270 , 144 S.E.2d 924 (1965).

Damages for inconvenient access not compensable. - Damages for mere inconvenience and circuity of travel in the access to one's property are not compensable in an eminent domain proceeding. State Hwy. Dep't v. Cantrell, 119 Ga. 241 , 166 S.E.2d 604 (1969).

Compensable elements of damage do not include prepayment interest penalties. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417 , 219 S.E.2d 707 (1975).

Examination of condemnee where perpetual easement for aviation purposes sought. - Where the condemnor seeks a perpetual easement for aviation purposes, in, to, upon and over, all of condemnee's property, the examination of the condemnee is not limited to planes using only one particular runway. Schoolcraft v. DeKalb County, 126 Ga. App. 101 , 189 S.E.2d 915 (1972).

Charge substantially in the language of this section and § 22-2-62 is not error. State Hwy. Bd. v. Coleman, 78 Ga. App. 54 , 50 S.E.2d 262 (1948).

Failure to instruct on definition of "consequential damages". - Where the court's jury charge never defined the term "consequential damages" and was vague in charging the method of determining consequential damages, the charge was too vague and that part of the judgment awarding consequential damages was overruled. DOT v. Clower, 170 Ga. App. 750 , 318 S.E.2d 161 (1984).

Cited in Nalley Land & Inv. Co. v. State Hwy. Bd., 49 Ga. App. 258 , 175 S.E. 269 (1934); Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939); State Hwy. Dep't v. Peavy, 77 Ga. App. 308 , 48 S.E.2d 478 (1948); Housing Auth. v. McDonald, 87 Ga. App. 392 , 74 S.E.2d 113 (1953); Georgia Power Co. v. Pittman, 92 Ga. App. 673 , 89 S.E.2d 577 (1955); O.K., Inc. v. State Hwy. Dep't, 213 Ga. 666 , 100 S.E.2d 906 (1957); Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959); State Hwy. Dep't v. Robinson, 103 Ga. App. 12 , 118 S.E.2d 289 (1961); Fulton County v. Bailey, 107 Ga. App. 512 , 130 S.E.2d 800 (1963); State Hwy. Dep't v. Stevens, 128 Ga. App. 418 , 196 S.E.2d 890 (1973); DOT v. Knight, 143 Ga. App. 748 , 240 S.E.2d 90 (1977); Georgia Power Co. v. 54.20 Acres of Land, 563 F.2d 1178 (5th Cir. 1977); Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980); DOT v. Willis, 165 Ga. App. 271 , 299 S.E.2d 82 (1983); Smith v. DeKalb County, 184 Ga. App. 628 , 362 S.E.2d 435 (1987).

Value of Property Taken

Owner entitled to fair market value for property taken. - An owner of property taken for public purposes is entitled to receive as compensation therefor the fair market value. State Hwy. Bd. v. Warthen, 54 Ga. App. 759 , 189 S.E. 76 (1936).

"Value," as used in reference to land taken under eminent domain, is a relative term depending on the circumstances. Thus, under some circumstances, "the value" might be the actual value, the market value, the salable value, the reasonable value, and the cash value. State Hwy. Bd. v. Bridges, 60 Ga. App. 240 , 3 S.E.2d 907 (1939).

It was not reversible error to charge the jury that "value," which is qualified in this section as "actual value," is the fair and reasonable value of a strip of land actually taken. Nor was it reversible error, after so charging, not to qualify and limit the word "value" by use of the words "market value." State Hwy. Bd. v. Bridges, 60 Ga. App. 240 , 3 S.E.2d 907 (1939).

Factors to be considered in estimating property value. - All the facts as to the condition of the property and its surroundings, its improvements and capabilities, may be shown and considered in estimating its value. State Hwy. Bd. v. Warthen, 54 Ga. App. 759 , 189 S.E. 76 (1936).

Reproduction cost may always be used as a factor involved in the valuation of property, together with other factors such as depreciation and the nature of the property interest seized, in determining market value. Housing Auth. v. Savannah Iron & Wire Works, Inc., 91 Ga. App. 881 , 87 S.E.2d 671 (1955).

In determining value of land actually taken, consequential damages or benefits should not be considered, these being separate elements which should be considered separately. State Hwy. Bd. v. Warthen, 54 Ga. App. 759 , 189 S.E. 76 (1936).

Pro rata valuation in partial taking not authorized. - Charge to jury which employed a pro rata method of assessing the value of a partial taking was erroneous; statutes which govern the manner of assessment and set out the factors considered in determining compensation do not express such a relational mode. Bland v. Bulloch County, 205 Ga. App. 317 , 422 S.E.2d 223 , cert. denied, 205 Ga. App. 899 , 422 S.E.2d 223 (1992).

Prospective value of land for any purpose may be considered. - In arriving at the value of the land taken under condemnation proceedings, the value of the land, including its prospective value for any purpose, may be considered. Georgia Power Co. v. Carson, 46 Ga. App. 612 , 167 S.E. 902 (1933).

Prospective value for any purpose may be considered in determining the value of land taken under condemnation proceedings. State Hwy. Bd. v. Coleman, 78 Ga. App. 54 , 50 S.E.2d 262 (1948).

All elements and uses of the land may be taken into consideration to determine the market value of the land taken and the consequential damages to the land not taken. However, under this sort of procedure, a witness may not be permitted to testify separately as to the value of each element. Southern Ry. v. Miller, 94 Ga. App. 701 , 96 S.E.2d 297 (1956).

Evidence of voluntary sales of similar lands admissible. - In a proceeding to condemn land, it is competent for the purpose of showing the value of the land being taken to introduce evidence of voluntary sales of other similar lands in the same vicinity made at or near the time of the taking and the price paid therefor. Alabama Power Co. v. Chandler, 217 Ga. 550 , 123 S.E.2d 767 (1962).

Oral and not binding offers cast no light upon value. - Oral and not binding offers are so easily made and refused in a mere passing conversation, and under circumstances involving no responsibility on either side, as to cast no light upon the question of value. Southern Ry. v. Miller, 94 Ga. App. 701 , 96 S.E.2d 297 (1956).

Ascertaining value of land taken by subtracting value of land remaining from value of whole land before taking is error, since this permits the consideration of consequential damages or benefits in arriving at the value of the land remaining and may thus work harm to either the condemnor or the condemnee. Fulton County v. Power, 109 Ga. App. 783 , 137 S.E.2d 474 (1964).

In eminent domain proceedings, evidence of the difference between the value of the whole property, that taken and that not taken, before the taking and after the taking is without probative value as to the actual value of the land taken and the consequential damage to that not taken. DOT v. Brand, 149 Ga. App. 547 , 254 S.E.2d 873 (1979).

Recovery beyond fair market value for property of unique value. - Although market value is ordinarily the measure of damages, if property has a unique or special use to the owner, just and adequate compensation should be determined without restriction to market value as such. DeKalb County v. Cowan, 151 Ga. App. 753 , 261 S.E.2d 478 (1979).

Admission of evidence of income producing qualities from land. - Where evidence as to the income producing qualities and capabilities of the land condemned is objected to, and the trial court instructs the jury that they are to consider this evidence only in arriving at a market value of the property taken and consequential damages to the remainder, there is no error in the admission of such evidence. State Hwy. Dep't v. Harrison, 115 Ga. App. 349 , 154 S.E.2d 723 , overruled on other grounds, Willis v. Hill, 116 Ga. App. 848 , 159 S.E.2d 145 (1967), rev'd, 224 Ga. 263 , 161 S.E.2d 281 (1968).

Recovery of business losses. - The damages sustained by a business are separate and apart from the damages sustained by the real estate on which it is located. Old S. Bottle Shop, Inc. v. Department of Transp., 175 Ga. App. 295 , 333 S.E.2d 127 (1985).

Prospective and Consequential Damages

Measure of consequential damages to adjoining property as a result of the condemnation of land for public purposes is the diminution of the value of the adjoining property measured by the difference between the fair market value of the property immediately before the condemnation and immediately after the condemnation. State Hwy. Bd. v. Coleman, 78 Ga. App. 54 , 50 S.E.2d 262 (1948).

The loss of value inherent in the land remaining after a strip of the land is taken is the difference between the greatest market value of land not taken before the strip is taken and improvements made less the market value of the remainder after the strip is taken off and improvements made. Swiney v. State Hwy. Dep't, 116 Ga. App. 667 , 158 S.E.2d 321 (1967).

Damages still "consequential" as long as value inheres in remaining fee. - The loss of value in land remaining after a strip is taken may approach the full value of the land, but it is still consequential damages so long as some value inheres in the fee remaining in the condemnee. Swiney v. State Hwy. Dep't, 116 Ga. App. 667 , 158 S.E.2d 321 (1967).

Consequential benefits to remaining lands may be shown only as offset against consequential damages and may not be used as an offset against the value of the land actually taken. Merritt v. Department of Transp., 147 Ga. App. 316 , 248 S.E.2d 689 (1978).

Consequential benefits refer to benefits accruing to property interests remaining in plaintiff at the site after the taking or damaging of a part thereof, and have no application where the entire interest of the plaintiff has been appropriated. Housing Auth. v. Savannah Iron & Wire Works, Inc., 91 Ga. App. 881 , 87 S.E.2d 671 (1955).

Reversion of title to old road to owner not consequential benefit. - Where land is condemned for the purpose of changing the location of a highway, the "consequential benefits to be derived by the owner" do not include the benefit which might be derived from the reversion to the owner of the title to the old road if and when abandoned. St. Clair v. State Hwy. Bd., 45 Ga. App. 488 , 165 S.E. 297 (1932).

It is error to admit evidence of diminution in value of adjoining property without evidence of fair market value before the condemnation for such evidence is a mere conclusion of the witness without foundations of fact for the consideration of the jury. State Hwy. Bd. v. Coleman, 78 Ga. App. 54 , 50 S.E.2d 262 (1948).

Damage to one contiguous parcel determinable without reference to others. - Where adjoining or contiguous parcels of land belonging to the same owner are put to separate and distinct uses, and do not together constitute one entire tract, damages to one of the parcels, as a result of the performance of public work in the neighborhood, is determinable without reference to the effect of the work upon the adjoining land. Gaines v. City of Calhoun, 42 Ga. App. 89 , 155 S.E. 214 (1930).

Damage to portion of tract balanced against benefit to whole. - Where a tract of land having a value and a peculiar utility as an entirety is affected by public work, the owner of the land, for the purpose of recovering damages resulting from the performance of the work, cannot sever from the entire tract a portion of it which has been peculiarly damaged and recover damages without reference to the benefits accruing to the entire tract by virtue of the performance of the work. Gaines v. City of Calhoun, 42 Ga. App. 89 , 155 S.E. 214 (1930).

Destruction of unity of property as basis for consequential damages. - In condemnation action involving farm, where there is evidence to show that the land taken will, by intrusion on the general layout of the property, tend to destroy the unity of the farm and thus depreciate the market value of the part not taken, this is a legitimate subject for consideration in determining the amount of consequential damages. DOT v. Brown, 155 Ga. App. 622 , 271 S.E.2d 876 (1980).

Opinion of witness as to diminution in value of land. - After a witness has given his opinion of the value of land which it is claimed would be subject to consequential damages by reason of condemning another part of the tract, and has stated that the structure created by the condemnor caused injury to the balance of the land, there is no error in permitting him to give his opinion as to the diminution in the value of the land. State Hwy. Bd. v. Coleman, 78 Ga. App. 54 , 50 S.E.2d 262 (1948).

Testimony and photographs properly admitted in determining consequential damages or benefits. - Testimony as to the replanting of trees and moving house back to the same relative location from the street as existed before the condemnation, and also certain photographs of the property in question, were properly admitted as evidence for consideration by the jury in determining consequential damages or benefits. State Hwy. Bd. v. Warthen, 54 Ga. App. 759 , 189 S.E. 76 (1936).

Damages and judgment bar recovery of consequential damages except those resulting from negligent construction. - Since this and § 22-2-62 plainly provide that the appraisers in proceedings to condemn private property for public purposes shall assess actual damages for the property taken and consequential damages to the property not taken, an award of damages and judgment of condemnation bar recovery of consequential damages except such as result from negligent and improper construction. Whipple v. County of Houston, 214 Ga. 532 , 105 S.E.2d 898 (1958).

Proper construction not grounds for damages to remainder of property. - Construction that is done with due care and is proper is not grounds for recovery for damages to the remainder of the property of the condemnee. Whipple v. County of Houston, 214 Ga. 532 , 105 S.E.2d 898 (1958).

Consequential damages for improper construction subject of separate damage suit. - Consequential damages to the remainder of the property caused by the negligent or improper construction of the improvement are not proper for consideration in a condemnation proceeding, but are the subject of a separate suit for damages. State Hwy. Dep't v. Kaylor, 110 Ga. App. 46 , 137 S.E.2d 664 (1964).

Mistaken theory that construction would improve, not damage, remaining property. - Where, due to a mistake of fact unmixed with negligence, the condemnation proceeding for a public road was conducted throughout upon the theory that the road would be paved at approximately grade level, thus improving rather than damaging the remaining abutting property, and there was nothing to indicate that a fill of from 25 to 40 feet would be made in front of the remaining property which would damage it in the amount of approximately $20,000.00, a petition in equity, alleging these facts and alleging that the mistake prevented the owners from proving this consequential damage, alleged a cause of action to set aside the award and the judgment of condemnation and to recover the full damages. Whipple v. County of Houston, 214 Ga. 532 , 105 S.E.2d 898 (1958).

Jury charge, based on this section, regarding consequential damages. - The court did not err in charging the jury where in part of the charge the correct rules as contained in this section were given as to the assessment of consequential damages in case the consequential benefits equaled or exceeded the consequential damages. Georgia, Fla. & Ala. Ry. v. Norman, 140 Ga. 42 , 78 S.E. 411 (1913).

Instruction held reversible error. - Instructing the jury that it could reduce the amount of consequential damages to the remainder of the property by the amount of special consequential benefits was reversible error, where there was no evidence from which the jury could have formed a reasonable estimate of the amount or value of such benefits. Perry v. Department of Transp., 193 Ga. App. 254 , 387 S.E.2d 445 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Assessment of consequential damages. - In assessing consequential damages, the difference would lie in the valuation of the land which remains after condemnation, as compared with the value of that fragment of land before the condemnation was commenced; in considering this "damage," the assessors or jury would be bound to deduct from the whole damage, any increase which might result from the improvement respecting the sales value or market value of the tract not taken. 1958-59 Op. Att'y Gen. p. 273.

Payment of taxes on land taken by eminent domain. - The payment of city or county taxes is not a proper element of damages in a condemnation case; the payment of property taxes is a responsibility of the landowner only so long as he, in fact, owns the property. The property owner or condemnee would be responsible for payment of taxes up to the date of taking; after that time, the responsibility for the payment of these taxes would lie upon the condemning body, if in fact that body is an entity which would have the responsibility for payment of these taxes. 1969 Op. Att'y Gen. No. 69-494.

Cost of transferring personal business articles to new location cannot be charged as such, but the reasonable cost of such moving may be evidence which is illustrative of the damage to the property, measured as of that particular owner; therefore, the cost of such moving should be ascertained and estimated, either when arriving at a value for negotiation, or when determining evidence of a value in condemnation case. 1958-59 Op. Att'y Gen. p. 276.

Where area taken for right of way intersects building on tract involved, i.e., a portion of the building lies on land which is taken, and a portion of the building lies on land which is not taken, that portion of the building which extends upon the right of way may be severed if it is practicable to do so without destruction of the building; if severance would result in destruction, then the measure of damage to the building is its full value. 1958-59 Op. Att'y Gen. p. 273.

In circumstances where a condemnation causes the intersection of a building by the line drawn between the land taken and the land not taken, where it is impossible to sever the building and the whole building would be destroyed, the value of the land without the building taken would be charged against the condemnor; the true market value of the remaining portion of the condemnee's land without the building, of course, it being destroyed, would be compared with the value of that tract before taking. 1958-59 Op. Att'y Gen. p. 273.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, § 152. 27 Am. Jur. 2d, Eminent Domain, §§ 266-296, 310-320, 357-374, 419-442.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 91.

C.J.S. - 25A C.J.S., Damages, § 2. 29A C.J.S., Eminent Domain, §§ 104-185, 271-275. 30 C.J.S., Eminent Domain, §§ 276-278, 296, 297.

ALR. - Profits derived from business conducted on property taken by eminent domain as evidence of market value, 7 A.L.R. 163 .

Loss of right to contest assessment in proceeding for street or sewer improvement by waiver, estoppel, or the like, 9 A.L.R. 634 .

Loss of right to contest assessment in drainage proceeding by waiver, estoppel, or the like, 9 A.L.R. 842 .

Expense of building and maintaining fences as element in the determination of damages in eminent domain, 10 A.L.R. 451 .

Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98 .

Protection of rights of mortgagee in eminent domain proceedings, 58 A.L.R. 1534 , 110 A.L.R. 542 , 154 A.L.R. 1110 .

Right of court to reduce or increase award in condemnation and confirm it as reduced or increased, 61 A.L.R. 194 .

Failure to claim in special assessment proceedings compensation for taking or damaging property in construction of improvements as waiver or estoppel, 64 A.L.R. 764 .

Measure of damages or compensation where property is taken to widen street, 64 A.L.R. 1513 .

Compensation in eminent domain in respect of fixtures or chattels used in connection with real property taken or damaged, 90 A.L.R. 159 .

Elements and measure of compensation for power lines or other wire lines over private property, 124 A.L.R. 407 .

Special value or adaptability of property for purpose for which it is taken, as an element of, or matter for consideration in fixing, damages in condemnation proceedings, 124 A.L.R. 910 .

Distinction between income or profits from business on land and income or profits from use of land, as affecting admissibility of evidence in that regard on question of damages in eminent domain, 134 A.L.R. 1125 .

Increment to value, from project for which land is condemned, as a factor in fixing compensation, 147 A.L.R. 66 .

Frustration of contractual rights as basis of claim for compensation where another's real property is taken in exercise of eminent domain, 152 A.L.R. 307 .

Price at which one whose land is taken or damaged under power of eminent domain has sold, contracted to sell, or optioned land in question to third person as evidence of its market value in condemnation proceeding or related action for damages, 155 A.L.R. 262 .

Are different estates or interests in real property taken under eminent domain to be valued separately, or entire property to be valued as a unit and the amount apportioned among separate interests, 166 A.L.R. 1211 .

General governmental policy (distinguished from specific project) as affecting compensation allowable in eminent domain, 167 A.L.R. 502 .

Eminent domain: valuation of land and improvements and fixtures thereon separately or as unit, 1 A.L.R.2d 878.

Elements and measure of lessee's compensation for taking or damaging leasehold in eminent domain, 3 A.L.R.2d 286.

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Attorney's fees as within statute imposing upon condemner liability for "expenses," "costs," and the like, 26 A.L.R.2d 1295.

Quotient condemnation report or award by commissioners or the like, 39 A.L.R.2d 1208.

Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use, 29 A.L.R.5th 36.

Counsel's use, in trial of condemnation proceeding, of chart, diagram or blackboard, not introduced in evidence, relating to damages or the value of the property condemned, 80 A.L.R.2d 1270.

Bad reputation of condemned property derived from its illegal use for gambling, prostitution, or the like, as factor decreasing compensation or damages, 87 A.L.R.2d 1156.

Changes in purchasing power of money as affecting compensation in eminent domain proceedings, 92 A.L.R.2d 772.

Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings, 2 A.L.R.3d 1038.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901.

Eminent domain: deduction of benefits in determining compensation or damages in proceedings involving opening, widening, or otherwise altering highway, 13 A.L.R.3d 1149.

Propriety and effect, in eminent domain proceeding, of argument or evidence as to landowner's unwillingness to sell property, 17 A.L.R.3d 1449.

Existence of restrictive covenant as element in fixing value of property condemned, 22 A.L.R.3d 961.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.

Measure of damages for condemnation of cemetery lands, 42 A.L.R.3d 1314.

Good will or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking, 59 A.L.R.3d 488.

Eminent domain: consideration of fact that landowner's remaining land will be subject to special assessment in fixing severance damages, 59 A.L.R.3d 534.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Assemblage or plottage as factor affecting value in eminent domain proceedings, 8 A.L.R.4th 1202.

Eminent domain: measure and elements of lessee's compensation for condemnor's taking or damaging of leasehold, 17 A.L.R.4th 337.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

22-2-64. Entry of findings by assessors.

The assessors shall enter their findings on the notice substantially as follows:

Upon the application of A.B. to condemn the following property or interest of C.D.: ________, notice was duly served by the sheriff (or his deputy) on C.D. (owner, trustee, representative, or judge of the probate court, as the case may be) by (mailing, posting, etc., as the case may be). The applicant appointed E.F. as assessor. The (owner, judge of the probate court, representative, as the case may be) appointed G.H. as assessor, and they two (or judge of the superior court) appointed I.J. as assessor; E.F., G.H., and I.J., after being duly sworn and hearing the evidence, find and award that for taking the property or interest sought to be condemned, to wit: ________, the said A.B. shall pay to C.D., as owner, the sum of $________. The consequential damages to the property or interest of C.D. not taken amount to $________, and the consequential benefits to $________; and the said A.B. shall pay said C.D. the difference between such damage and such benefit.

(Ga. L. 1894, p. 95, § 20; Civil Code 1895, § 4676; Civil Code 1910, § 5226; Code 1933, § 36-507.)

JUDICIAL DECISIONS

Award by assessors binding until reversed or set aside. - An award by condemnation assessors and the order and judgment of the court directing the filing thereof are judgments rendered by a competent tribunal, and, even if erroneous, are binding upon a condemnee until reversed or set aside, and cannot be collaterally attacked in the condemnee's equitable petition for injunction against the condemnor's contractor. McGreggor v. W.L. Florence Constr. Co., 208 Ga. 176 , 65 S.E.2d 809 (1951).

Jury use of form similar to finding of assessors. - Where the procedure is proper in submitting to the jury a form similar to the finding of assessors under this section and § 22-2-63 , and there is no exception to such procedure, the jury, like the appraisers, has the right under § 22-2-63 , if the evidence so authorized, to offset any consequential damages to the "property not taken" with the "consequential benefits," and to find the difference, if any, in favor of the property owner, but to award nothing for such damages if the "consequential benefits" equaled or exceeded the "consequential damages." Nalley Land & Inv. Co. v. State Hwy. Bd., 49 Ga. App. 258 , 175 S.E. 269 (1934).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 443.

C.J.S. - 30 C.J.S., Eminent Domain, §§ 299-304.

22-2-65. Filing and recording of award.

Within ten days after the award is made, it shall be filed and recorded in the office of the clerk of the superior court of the county where the property or interest is situated.

(Ga. L. 1894, p. 95, § 21; Civil Code 1895, § 4677; Civil Code 1910, § 5227; Code 1933, § 36-508.)

JUDICIAL DECISIONS

After award of assessors has been made condemnor cannot dismiss condemnation suit. Housing Auth. v. Mercer, 123 Ga. App. 38 , 179 S.E.2d 275 (1970).

Award by assessors binding until reversed or set aside. - An award by condemnation assessors and the order and judgment of the court directing the filing thereof are judgments rendered by a competent tribunal, and, even if erroneous, are binding upon a condemnee until reversed or set aside, and cannot be collaterally attacked in the condemnee's equitable petition for injunction against the condemnor's contractor. McGreggor v. W.L. Florence Constr. Co., 208 Ga. 176 , 65 S.E.2d 809 (1951).

Filing is not essential to validity but only to enforceability of the award of the assessors. Hodges v. South Ga. Natural Gas Co., 111 Ga. App. 180 , 141 S.E.2d 182 (1965).

This section is directory and contains no provision that delay in recordation of the award renders the same invalid. Landers v. Georgia Pub. Serv. Comm'n, 217 Ga. 804 , 125 S.E.2d 495 (1962).

Cited in State Hwy. Bd. v. Long, 61 Ga. App. 173 , 6 S.E.2d 130 (1939); Woodside v. City of Atlanta, 214 Ga. 75 , 103 S.E.2d 108 (1958); State Hwy. Dep't v. Wilson, 98 Ga. App. 619 , 106 S.E.2d 544 (1958); DOT v. Garrett, 154 Ga. App. 104 , 267 S.E.2d 643 (1980).

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Eminent Domain, § 303.

ALR. - Referee's failure to file report within time specified by statute, court order, or stipulation as terminating reference, 71 A.L.R.4th 889.

PART 5 A PPEALS AND FINAL JUDGMENT

JUDICIAL DECISIONS

This chapter concerns appeals from several different forms of condemnation proceedings and is necessarily general in its language. DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695 , 182 S.E.2d 160 (1971).

Burden of proving value of land and consequential damages on condemnor. - The burden of proof to show the value of the land taken and the consequential damages to the remaining property, if any, is on the condemnor. State Hwy. Dep't v. Smith, 111 Ga. App. 292 , 141 S.E.2d 590 (1965).

Condemnor chooses its method of procedure, and it is bound by the provisions of law following its own election. The property owner is also bound, although he did not choose the method of procedure. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Award of assessors is condition precedent to condemnor's appeal. - An award of compensation by assessors, filed as required by law, is a taking of private property for public use and payment must be made as a condition precedent to the condemnor's right to prosecute an appeal. Arnold v. State Hwy. Dep't, 116 Ga. App. 201 , 156 S.E.2d 469 (1967).

Compensation the sole issue for jury on appeal. - In condemnation cases, the sole question for the consideration of the jury, upon an appeal from an award of the assessors or from an award of a special master, is the amount of compensation to be paid to the condemnee for the property taken under the condemnation proceeding and the amount of damages to the remaining property of the condemnee, if any. State Hwy. Dep't v. Smith, 111 Ga. App. 292 , 141 S.E.2d 590 (1965).

Motion to dismiss appeal in condemnation proceedings under Art. 3 of this chapter, which is regulated by this part, falls in a different category from an oral motion to strike pleadings, amendments, or answers, since the motion to dismiss the appeal raises issues of fact. Murray v. State Hwy. Dep't, 103 Ga. App. 517 , 120 S.E.2d 48 (1961).

Ruling on oral motion to strike motion to dismiss. - Trial court, in passing upon an oral motion to strike and dismiss the motion to dismiss an appeal in condemnation proceedings, can consider the evidence. Murray v. State Hwy. Dep't, 103 Ga. App. 517 , 120 S.E.2d 48 (1961).

Contesting validity of condemnation proceedings. - Where a property owner participates in proceedings but refuses to take the award of the assessors, and where the property owner acted promptly after the award of the assessors was made by filing his petition in equity, alleging that the condemnor was proceeding illegally and had no right to condemn, and sought to enjoin the entering upon or taking possession of his property, the property owner is not estopped from contesting the validity of the condemnation proceedings. Johnston v. Clayton County Water Auth., 222 Ga. 39 , 148 S.E.2d 417 (1966).

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960); Russell v. Venable, 216 Ga. 137 , 115 S.E.2d 103 (1960); Harwell v. Georgia Power Co., 154 Ga. App. 142 , 267 S.E.2d 769 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Date of taking is date of special master's or assessor's award. 1970 Op. Att'y Gen. No. 70-116.

Appraisal to be updated to date of hearing before special master. - When condemnation is necessary, the appraiser should be instructed to update his appraisal to the date of the hearing before the special master; this appraisal should contemplate that the amount of the award will be paid into court by condemnor within ten days of such hearing by the special master, and this is the amount that the appraiser should be prepared to testify to if and when there is an appeal of the matter to a jury in the superior court by either party thereto. 1970 Op. Att'y Gen. No. 70-116.

RESEARCH REFERENCES

ALR. - Condemnor's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

Spur track and the like as constituting a use for which railroad can validly exercise right of eminent domain, 35 A.L.R.2d 1326.

Liability for costs on appeal relating to amount of condemnation award, 50 A.L.R.2d 1386.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Right to open and close argument in trial of condemnation proceedings, 73 A.L.R.2d 613.

Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment, 92 A.L.R.2d 346.

22-2-80. Appeal to jury in superior court - Generally.

In case either party is dissatisfied with the amount of the assessors' award, he or they may, within ten days from the time the award is filed, enter in writing an appeal from the award to the superior court of the county where the award is filed. At the term succeeding the filing of the appeal, it shall be the duty of the judge to cause an issue to be made and tried by a jury as to the value of the property or interest taken or the amount of damage done, with the same right to move for a new trial and file an appeal as in other cases at law.

(Ga. L. 1894, p. 95, § 22; Civil Code 1895, § 4678; Civil Code 1910, § 5228; Code 1933, § 36-601.)

JUDICIAL DECISIONS

The Legislature intended to concern itself with time after which appeal may not be filed, with no regard to the time when filing is premature, except that of course the award of the assessors must be in existence, and the rights of the parties fixed, in order that there may be something to appeal from. The filing itself is not essential to the validity but only to the enforceability of the award. Hodges v. South Ga. Natural Gas Co., 111 Ga. App. 180 , 141 S.E.2d 182 (1965).

Award of assessors, standing alone, is not judgment of court since the judgment is entered up by the court based on the award, but it is a judgment rendered by a tribunal which is competent to fix the rights and liabilities of the parties to the proceedings with reference to the matters and things involved. It can be amended only by permission of the court. Hodges v. South Ga. Natural Gas Co., 111 Ga. App. 180 , 141 S.E.2d 182 (1965).

Procedure provided for by this section is not a suit within the legal meaning of the term. Hodges v. South Ga. Natural Gas Co., 111 Ga. App. 180 , 141 S.E.2d 182 (1965).

Time for appealing assessor's award. - Since the Board of Assessors did not file and record their award, apparently on the belief that the parties had decided on their own what the just compensation was for the condemnor obtaining the right of way, the 10-day time period for filing an appeal to a jury from the time the award was filed never arose and the condemnee was not barred from filing an appeal to a jury. Morrison v. Derdziak, 255 Ga. App. 89 , 564 S.E.2d 500 (2002).

Appeal entered after ten days from filing of award is properly dismissed. Edwards v. Savannah & S. Ry., 140 Ga. 761 , 79 S.E. 841 (1913).

Appeal not filed within the ten-day period is not timely and the proper judgment is one of dismissal. City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975).

Petition for removal of condemnation proceedings must be filed within the time allowed for appeals. City of Toccoa v. Marchbanks, 261 F. 684 (N.D. Ga. 1919).

Appeal may be entered by appellant's attorney. Bibb Brick Co. v. Central of Ga. Ry., 151 Ga. 83 , 105 S.E. 833 (1921).

No bond is necessary on appeal. Alderman v. Valdosta, M. &. W.R.R., 9 Ga. App. 526 , 71 S.E. 931 (1911); Bibb Brick Co. v. Central of Ga. Ry., 151 Ga. 83 , 105 S.E. 833 (1921).

But appeal may be entered by city giving bond to the clerk of superior court. Potts v. City of Atlanta, 140 Ga. 431 , 79 S.E. 110 (1913).

Judge's duty to bring issue to trial. - This section places the duty to bring the issue to trial squarely upon the judge; no burden is imposed on either party by the statute to insure that the case is timely tried. Lackey v. DeKalb County, 156 Ga. App. 309 , 274 S.E.2d 705 (1980); Nodvin v. DeKalb County, 158 Ga. App. 819 , 282 S.E.2d 410 (1981).

Appeal under this section is de novo investigation, and the defendant may file an appropriate defense thereto. Central Ga. Power Co. v. Cornwell, 139 Ga. 1 , 76 S.E. 387 , 1914A Ann. Cas. 880 (1912).

An appeal to the superior court from an award of assessors in a condemnation proceeding is a de novo investigation, if the assessors had jurisdiction over the subject matter and the parties. If the assessors do have such jurisdiction, the appeal will not be dismissed nor the case remanded, though the award be in fact a nullity. Livsey v. Walton County, 47 Ga. App. 211 , 170 S.E. 268 (1933).

The appeal from an appraisers' award on condemnation proceedings under this section brings the matter de novo to the jury on matters of value of the property taken and amount of damage done. Tuggle v. De Kalb County, 101 Ga. App. 890 , 115 S.E.2d 751 (1960).

An appeal from an award of assessors is a trial de novo on the question of compensation, and it is the function and duty of the jury to pass upon the issues independently of the award of the assessors. Chandler v. Alabama Power Co., 104 Ga. App. 521 , 122 S.E.2d 317 (1961), rev'd on other grounds, 217 Ga. 550 , 123 S.E.2d 767 (1962).

An appeal by either party entitles both parties to a de novo determination of the issue of the amount of a condemnee's award. Smith v. Georgia Power Co., 131 Ga. App. 380 , 205 S.E.2d 916 (1974).

The only method of correcting any errors the assessors or a special master may have made in the original hearing and award is not by recommittal to that body but by an appeal in the superior court, which begins again the process of adjudication. City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975).

Only issue on appeal is amount of compensation to be paid. - The issue on appeal cannot be broadened so as to raise questions other than those as to compensation. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904); Atlanta Terra Cotta Co. v. Georgia Ry. & Elec. Co., 132 Ga. 537 , 64 S.E. 563 (1909).

In condemnation proceedings the only issue before the assessors or a jury on appeal is the amount of compensation to be paid, and neither the assessors nor a jury can determine whether the condemnor is proceeding legally; the remedy of the landowners is to apply to a court of equity to enjoin the illegal proceedings. Garden Parks v. Fulton County, 88 Ga. App. 97 , 76 S.E.2d 31 (1953).

The sole question to be passed upon by the assessors, or a jury in the superior court on appeal, is the amount of compensation to be paid. Whether the quantity of land sought to be taken is necessary and proper for the purpose for which it is sought is a question not involved in such a proceeding. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

As a general rule the only issue before the jury relative to lands taken is its market value at the time of the taking. State Hwy. Dep't v. Howell, 119 Ga. App. 606 , 168 S.E.2d 213 (1969).

While all relevant legal and equitable issues may be raised in an appeal from the assessors' award in a condemnation proceeding, the sole issue for the jury is value. All other issues, including the necessary fact finding, are for the determination of the court. DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695 , 182 S.E.2d 160 (1971).

An appeal to the superior court jury is on the issue of value and damages alone. City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975).

An appeal from an award of assessors is a trial de novo on the question of compensation, and it is the function and duty of the jury to pass upon the issues independently of the award of the assessors. DeKalb County v. Queen, 135 Ga. App. 307 , 217 S.E.2d 624 (1975).

Form of verdict on appeal from award of appraisers is not prescribed by statute. Nalley Land & Inv. Co. v. State Hwy. Bd., 49 Ga. App. 258 , 175 S.E. 269 (1934).

Award of jury shall be in money only, and no conditions can be attached thereto. Darien & W.R.R. v. McKay, 132 Ga. 672 , 64 S.E. 785 (1909).

On appeal from the award of assessors in a statutory condemnation proceeding, the verdict should be for a given sum. State Hwy. Bd. v. Warthen, 54 Ga. App. 754 , 189 S.E. 76 (1936).

Waiver of irregularities in proceedings. - Where the parties agreed to waive irregularities in proceedings to condemn a railroad right of way, these are not open on appeal. Georgia G.R.R. v. Venable, 129 Ga. 341 , 58 S.E. 864 (1907).

Interest should be included as part of jury's award, for the jury, in reaching a verdict, should consider separately the various elements in respect to which they hear testimony, and their verdict is properly rendered for one sum. State Hwy. Bd. v. Warthen, 54 Ga. App. 759 , 189 S.E. 76 (1936).

Tender or payment of award is necessary before property may be taken or the work thereon commenced. Wilson v. State Hwy. Dep't, 85 Ga. App. 907 , 70 S.E.2d 535 (1952).

Payment to court equivalent of payment to owner, not owner's acceptance. - Payment into court is the equivalent of payment to the owner only insofar as the right to enter upon the property and prosecute the work under this section is concerned. It is not the equivalent of acceptance of the award by the owner nor of payment to him insofar as it affects his right to pursue his remedy in equity. Williams v. City of La Grange, 213 Ga. 241 , 98 S.E.2d 617 (1957).

Procedure substantially the same for appeals from assessors' award and justice's court. - Substantially the same procedure is provided in cases of appeal from an award of assessors in a condemnation proceeding to the superior court as is provided in cases of appeal from a justice's court to the superior court. State Hwy. Bd. v. Long, 61 Ga. App. 173 , 6 S.E.2d 130 (1939).

Amendments and readjustments of petitions authorized on appeal. - On the appeal from the award of the appraisers, it is the duty of the judge to cause an issue to be made, and that in itself authorizes amendments and readjustments of the petitions in so far as they do not disturb the actual property involved. Tuggle v. De Kalb County, 101 Ga. App. 890 , 115 S.E.2d 751 (1960).

Including amendment of acreage description. - Where land to be condemned is accurately described by metes and bounds but the acreage description is not completely accurate, the acreage description may be changed by amendment on appeal of the appraisers' award, and such change is no ground for dismissing the appeal. Tuggle v. De Kalb County, 101 Ga. App. 890 , 115 S.E.2d 751 (1960).

Award of assessors is not proper evidence for consideration of jury on an appeal in a condemnation case. Chandler v. Alabama Power Co., 104 Ga. App. 521 , 122 S.E.2d 317 (1961), rev'd on other grounds, 217 Ga. 550 , 123 S.E.2d 767 (1962); DeKalb County v. Queen, 135 Ga. App. 307 , 217 S.E.2d 624 (1975).

Except for purpose of impeaching appraiser's testimony. - The award of the assessors may be admitted for the limited purpose of impeaching the testimony of one of the appraisers. DeKalb County v. Queen, 135 Ga. App. 307 , 217 S.E.2d 624 (1975).

Withdrawal of appeal not allowed without consent of adverse party. - Where an appeal is taken from an award of assessors to the superior court, the condemnor shall not be allowed to withdraw an appeal after it shall be entered, but by the consent of the adverse party. State Hwy. Bd. v. Long, 61 Ga. App. 173 , 6 S.E.2d 130 (1939).

Section 22-2-112 is copied verbatim from this section and consequently has the same meaning. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Section 22-2-112 dealing with an appeal from the award of the special master, and this section dealing with appeals from awards of assessors in eminent domain cases, are in identical language and must be given the same meaning. City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975).

Appeal from award of arbitrators governed by Title 9. - Notwithstanding a provision in an agreement submitting issues to arbitration under Title 9, that the arbitrators should proceed "as in condemnation proceedings," and providing for an "appeal" from the award to the superior court, the award of the arbitrators was a statutory award, to be governed by Title 9, not this title. Georgia Power Co. v. Friar, 47 Ga. App. 675 , 171 S.E. 210 (1933), aff'd, 179 Ga. 470 , 175 S.E. 807 (1934).

Condemnee should be allowed to show rental income from property, not for the purpose of being compensated for lost future revenue, but for the purpose of showing the use and location as affecting the value of the property. DeKalb County v. Queen, 135 Ga. App. 307 , 217 S.E.2d 624 (1975).

Where jury tries case upon appeals of both condemnor and condemnee, the trial is valid and binding, assuming that the appeal of the condemnor is invalid and alone would not give the court jurisdiction. Liberson v. City of Atlanta, 98 Ga. App. 255 , 105 S.E.2d 376 (1958).

Liability for interest on difference between assessors' award and final judgment. - Where the amount of the final judgment is less than the award made by the assessors, the condemnee is not liable for the payment of interest on the difference in the amount of the award and the judgment except from the date of the judgment. City of Atlanta v. Lunsford, 105 Ga. App. 247 , 124 S.E.2d 493 (1962).

Where tenth day following assessor's award falls on Saturday and condemnee files appeal two days thereafter, the entry of a judgment on an assessor's award only two days after the award was filed is premature. McAllister v. City of Jonesboro, 151 Ga. App. 260 , 259 S.E.2d 666 (1979).

In appeal from assessment after land has been condemned to establish new road which alters an existing road, the burden is upon the property owner, in order to establish any consequential damage which may have been sustained by him from a discontinuance of the old road, to show that the old road has been discontinued in the manner prescribed by law. Wellmaker v. Lamar County Advisory Bd., 43 Ga. App. 816 , 160 S.E. 708 (1931).

Cited in Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 112 Ga. 941 , 38 S.E. 353 (1901); Denham v. State Hwy. Bd., 52 Ga. App. 790 , 184 S.E. 631 (1936); Stewart v. Board of Comm'rs, 66 Ga. App. 108 , 17 S.E.2d 203 (1941); United States v. 340 Acres of Land, 54 F. Supp. 457 (S.D. Ga. 1944); State Hwy. Dep't v. Peavy, 77 Ga. App. 308 , 48 S.E.2d 478 (1948); Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53 , 60 S.E.2d 162 (1950); Wilson v. State Hwy. Dep't, 85 Ga. App. 907 , 70 S.E.2d 535 (1952); Olliff v. Housing Auth., 89 Ga. App. 43 , 78 S.E.2d 549 (1953); Murray v. State Hwy. Dep't, 103 Ga. App. 517 , 120 S.E.2d 48 (1961); State Hwy. Dep't v. Hester, 112 Ga. App. 51 , 143 S.E.2d 658 (1965); Adams v. Housing Auth., 117 Ga. App. 646 , 161 S.E.2d 444 (1968); Hinton v. Georgia Power Co., 126 Ga. App. 416 , 190 S.E.2d 811 (1972); Taylor v. Georgia Power Co., 129 Ga. App. 89 , 198 S.E.2d 701 (1973); James v. Housing Auth., 233 Ga. 447 , 211 S.E.2d 738 (1975); Martha K. Wayt Trust v. City of Cumming, 306 Ga. App. 790 , 702 S.E.2d 915 (2010).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Appeal and Error, §§ 146, 188, 258. 27 Am. Jur. 2d, Eminent Domain, §§ 407, 408, 448, 468-472.

C.J.S. - 30 C.J.S., Eminent Domain, §§ 276-291, 306-318, 343-372.

ALR. - Provision for taking or retaining possession pending appeal in condemnation proceeding, 55 A.L.R. 201 .

Right of court to reduce or increase award in condemnation and confirm it as reduced or increased, 61 A.L.R. 194 .

Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

How to obtain jury trial in eminent domain: waiver, 12 A.L.R.3d 7.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

22-2-81. Appeal to jury in superior court - Effect of appeal on condemnor's right to use condemned property or interest; payment, tender, or deposit of award as condition on condemnor's right to use property or interest.

The entering of an appeal and the proceedings thereon shall not hinder or delay in any way the condemnor's right to use the condemned property or interest, provided that the condemnor pays or tenders to the owner the amount of the award and, in case of the refusal of the owner to accept the award, deposits the amount awarded with the clerk of the superior court for the benefit of the owner.

(Ga. L. 1894, p. 95, § 23; Civil Code 1895, § 4679; Civil Code 1910, § 5229; Code 1933, § 36-602.)

Law reviews. - For comment on Georgia Power Co. v. Fountain, 207 Ga. 361 , 61 S.E.2d 454 (1950), see 13 Ga. B.J. 341 (1951).

JUDICIAL DECISIONS

Award by assessors binding until reversed or set aside. - An award by condemnation assessors and the order and judgment of the court directing the filing thereof are judgments rendered by a competent tribunal, and, even if erroneous, are binding upon a condemnee until reversed or set aside, and cannot be collaterally attacked in the condemnee's equitable petition for injunction against the condemnor's contractor. McGreggor v. W.L. Florence Constr. Co., 208 Ga. 176 , 65 S.E.2d 809 (1951).

Cited in Central Ga. Power Co. v. Stone, 142 Ga. 662 , 83 S.E. 524 (1914); Gaston v. Shunk Plow Co., 161 Ga. 287 , 130 S.E. 580 (1925); Georgia Power Co. v. Fountain, 207 Ga. 361 , 61 S.E.2d 454 (1950); Olliff v. Housing Auth., 89 Ga. App. 43 , 78 S.E.2d 549 (1953); Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961); Robinson v. Transcontinental Gas Pipe Line Corp., 306 F. Supp. 201 (N.D. Ga. 1969); Georgia Dep't of Transp. v. Woodward, 254 Ga. 587 , 331 S.E.2d 557 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 469.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 192, 221. 30 C.J.S., Eminent Domain, § 329.

ALR. - Eminent domain: payment or deposit of award in court as affecting condemnor's right to appeal, 40 A.L.R.3d 203.

22-2-82. Appeal to jury in superior court - Effect of tender, payment, or acceptance of assessors' award on right of appeal; effect of discrepancy between award and final judgment.

The tender, payment, or acceptance of the award shall not prevent either party from prosecuting the appeal. If the amount awarded by the assessors is less than that found by the final judgment, the person seeking condemnation shall be bound to pay the sum so finally adjudged in order to retain the property or interest. If the amount of the final judgment is less than that awarded by the assessors, the owner shall be bound to refund any excess paid to or received by him; and a judgment for such excess shall be rendered against him to be collected by levy as in other cases.

(Ga. L. 1894, p. 95, § 24; Civil Code 1895, § 4680; Civil Code 1910, § 5230; Code 1933, § 36-603.)

JUDICIAL DECISIONS

Payment of amount of jury verdict is condition precedent to appeal. - Under the mandate of the Constitution, that private property cannot be taken or damaged for public use without first paying just and adequate compensation to the owner, the payment of the amount of a jury verdict in excess of the prior appraisal by assessors, or special master, is a condition precedent to a valid appeal from such verdict and the judgment based thereon. City of Atlanta v. Wright, 159 Ga. App. 809 , 285 S.E.2d 250 (1981).

Tender of award did not impact right to jury. - Although the condemnor tendered compensation into the trial court's registry that appeared to represent the sum the condemnor and condemnee had agreed was sufficient compensation, the tender of the award did not affect the condemnee's right to appeal to a jury. Morrison v. Derdziak, 255 Ga. App. 89 , 564 S.E.2d 500 (2002).

Prayer seeking to enjoin appeal cannot be maintained where the plaintiff has an available remedy at law under this section. Bibb Brick Co. v. Central of Ga. Ry., 150 Ga. 65 , 102 S.E. 521 (1920).

Effect of amendment on appeal alleging tender. - An amendment on appeal, alleging tender and acceptance of an assessment operates as a waiver of any irregularity in the notice and assessment. Georgia G.R.R. v. Venable, 129 Ga. 341 , 58 S.E. 864 (1907).

Liability for interest on difference between assessors' award and final judgment. - Where the amount of the final judgment is less than the award made by the assessors, the condemnee is not liable for the payment of interest on the difference in the amount of the award and the judgment except from the date of the judgment. City of Atlanta v. Lunsford, 105 Ga. App. 247 , 124 S.E.2d 493 (1962).

Interest on award withdrawn by condemnee held improper. - Where the condemnor paid into the registry of the court the sum awarded to the condemnee by the appointed assessors, and the court paid the sum to the condemnee, the condemnor appealed from the assessors' award, and the court entered judgment for the condemnor for the difference between the assessors' award and the jury's verdict, the award of interest at 7 percent per annum from the date the condemnee withdrew the award from the court was improper. Fletcher v. State Hwy. Dep't, 105 Ga. App. 251 , 124 S.E.2d 755 (1962).

Error in instruction on computation of interest cured. - While the court erred in instructing the jury that interest should be computed from the date of the award, as the amount of the award of the assessors was paid, and the interest on the difference between the amount of the verdict and the amount tendered should have been computed from the date of the tender, and not from the date of the award, the error was fully cured and rendered harmless to the plaintiff by the defendants writing off all possible interest that the jury could have computed on the damages awarded by them, in excess of the amount of the original award, from the date of that award to the date of the verdict. State Hwy. Bd. v. Warthen, 54 Ga. App. 759 , 189 S.E. 76 (1936).

Jury verdict larger than assessor's award. - See Atlanta, B. & Atl. R.R. v. Smith, 132 Ga. 725 , 64 S.E. 1073 (1909).

Cited in Atlanta Terra Cotta Co. v. Georgia Ry. & Elec. Co., 132 Ga. 537 , 64 S.E. 563 (1909); Central of Ga. Power Co. v. Stone, 142 Ga. 662 , 83 S.E. 524 (1914); Wilson v. State Hwy. Dep't, 85 Ga. App. 907 , 70 S.E.2d 535 (1952); First Nat'l Bank v. State Hwy. Dep't, 219 Ga. 144 , 132 S.E.2d 263 (1963); Sadtler v. City of Atlanta, 236 Ga. 396 , 223 S.E.2d 819 (1976); Hendley v. Housing Auth., 160 Ga. App. 221 , 286 S.E.2d 463 (1981); Georgia Dep't of Transp. v. Woodard, 254 Ga. 587 , 331 S.E.2d 557 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Appeal and Error, § 258.

C.J.S. - 29A C.J.S., Eminent Domain, § 194.

ALR. - Right of court to reduce or increase award in condemnation and confirm it as reduced or increased, 61 A.L.R. 194 .

Condemnor's right, as against condemnee, to interest on excessive money deposited in court or paid to condemnee, 99 A.L.R.2d 886.

Eminent domain: payment or deposit of award in court as affecting condemnor's right to appeal, 40 A.L.R.3d 203.

22-2-83. Issuance of execution on award or judgment.

If the condemnor fails to pay the amount of the award or judgment within ten days after the same is filed or entered, then the clerk shall issue execution upon such award or judgment which may be levied upon any property of the condemnor.

(Ga. L. 1894, p. 95, § 25; Civil Code 1895, § 4681; Civil Code 1910, § 5231; Code 1933, § 36-604.)

JUDICIAL DECISIONS

Condemnee entitled to file award and have execution issued. - A condemnee was under the provisions of this section entitled, when the condemnor's appeal was dismissed, to file the award of the appraisers in the clerk of the superior court's office and have an execution issued on it. Towler v. State Hwy. Dep't, 100 Ga. App. 374 , 111 S.E.2d 154 (1959).

This section does not treat award and final judgment as same thing. Georgia Power Co. v. Selman, 87 Ga. App. 323 , 73 S.E.2d 597 (1952).

And execution of award may not be arrested by affidavit of illegality. - Since the award of appraisers in a condemnation proceeding is not a judgment of a court, an execution issued thereon may not be arrested by an affidavit of illegality. Georgia Power Co. v. Selman, 87 Ga. App. 323 , 73 S.E.2d 597 (1952).

Effect of subsequent independent suit by condemnee on appraisers' award. - The filing of a suit by a condemnee independently of condemnation proceedings and subsequently to the award of the appraisers, in which latter case the condemnee sought to obtain a general judgment for damages, did not affect the right of the condemnee to proceed to have an execution issued on the award in the manner prescribed by this section. The award could, according to § 9-2-44(a) , have been pleaded to the subsequent damage suit, since the obtaining of the valid award of the appraisers, which award was in the nature of a judgment, prevented a further suit on the same cause of action, except such proceeding as was necessary to enforce the award. The award and the proceedings to enforce it were exhaustive of the condemnee's rights in the premises, and no legal judgment could have been rendered in the same. Towler v. State Hwy. Dep't, 100 Ga. App. 374 , 111 S.E.2d 154 (1959).

Cited in Georgia Dep't of Transp. v. Woodard, 254 Ga. 587 , 331 S.E.2d 557 (1985).

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Eminent Domain, § 332.

22-2-84. Entry of notice and award on minutes of court; payment of costs.

In all cases, the clerk shall enter the notice and award thereon upon the minutes of the court, and the condemnor shall pay:

  1. The assessors' costs as provided in Code Section 22-2-40; and
  2. Other costs as provided by law in civil cases in the superior court.

    The condemnee shall pay the assessors' costs as provided in Code Section 22-2-40.

    (Ga. L. 1894, p. 95, § 26; Civil Code 1895, § 4682; Civil Code 1910, § 5232; Code 1933, § 36-605; Ga. L. 1949, p. 1404, § 1; Ga. L. 1955, p. 651, §§ 1, 2; Ga. L. 1992, p. 1688, § 1; Ga. L. 1998, p. 1539, § 2.)

The 1992 amendment, effective July 1, 1992, in subsection (b), substituted "500,000 or more according to the United States decennial census of 1990 or any future such census" for "300,000 or more according to the present or any future United States census".

The 1998 amendment, effective July 1, 1998, rewrote this Code section.

Law reviews. - For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U.L. Rev. 115 (1998).

JUDICIAL DECISIONS

Requirement of payment of costs is for benefit of officers of court and not a condition precedent to the filing of an appeal. Hilderbrand v. Housing Auth., 109 Ga. App. 297 , 136 S.E.2d 24 (1964).

Clerk is not bound to receive appeal until costs have been paid to him, but if the clerk does receive an appeal without exacting the costs, the appeal is good, and the clerk becomes estopped from saying that the costs have not been paid to him - estopped as to all persons, at least, except the appellant. Hilderbrand v. Housing Auth., 109 Ga. App. 297 , 136 S.E.2d 24 (1964).

Failure of condemnor to pay costs and fees within 10 days after judgment does not vitiate its appeal therefrom regardless of whether or not it is a political subdivision of the state. Hilderbrand v. Housing Auth., 109 Ga. App. 297 , 136 S.E.2d 24 (1964).

Waiver of right to have costs paid in advance. - Where a magistrate refuses to dismiss an appeal because costs have not been paid by the appellant, this amounts to a waiver of his right to have the costs paid in advance, and the appellee has no right to complain of the refusal to dismiss the appeal. Hilderbrand v. Housing Auth., 109 Ga. App. 297 , 136 S.E.2d 24 (1964).

Cited in Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959); Murray v. State Hwy. Dep't, 103 Ga. App. 517 , 120 S.E.2d 48 (1961).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 473.

C.J.S. - 30 C.J.S., Eminent Domain, § 305.

ALR. - Liability for costs in trial tribunal in eminent domain proceedings as affected by offer or tender by condemnor, 70 A.L.R.2d 804.

22-2-84.1. Appeals to superior court from assessor's award; reasonable expenses; liability of costs relating to issues of law.

Repealed by Ga. L. 2006, p. 39, § 6/HB 1313, effective April 4, 2006.

Editor's notes. - This Code section was based on Code 1981, § 22-2-84.1 , enacted by Ga. L. 1998, p. 1539, § 2.

22-2-85. Extent of interest obtainable by condemnor upon condemnation.

Upon the payment by the condemnor of the amount of the award, or the amount of the final judgment if there is an appeal, the condemnor shall become vested with such interest in the property taken as may be necessary to enable the condemnor to exercise his franchise or conduct his business. Whenever the condemnor ceases using the property taken for the purpose of conducting his business, the property shall revert to the person from whom taken, his heirs or assigns. Notwithstanding any other provision of this Code section, whenever any municipality condemns land for protection against floods and freshets, that municipality may acquire a fee simple title to the property condemned on payment of the condemnation money. When such municipality has a population of more than 250,000 according to the last or any future decennial census of the United States, such municipality, or the county in which the major portion of such municipality is located, shall acquire a fee simple title to the property condemned upon payment of the condemnation money.

(Ga. L. 1894, p. 95, § 27; Civil Code 1895, § 4683; Civil Code 1910, § 5233; Ga. L. 1914, p. 61; Code 1933, § 36-606; Ga. L. 1945, p. 690, § 1; Ga. L. 1975, p. 1148, § 1.)

Cross references. - Vesting of fee simple title in municipal or county housing authority upon exercise of power of eminent domain, § 8-3-10 .

Law reviews. - For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008).

JUDICIAL DECISIONS

Use of condemned property. - The appropriation to public use amounts to a withdrawal only from such private uses as will interfere with the public use. Private use is of course to be subordinated to the public use, but, where the fee remains in the owner, he is entitled to make any use of the property which is not inconsistent with its use for the purpose for which it was taken. H.G. Hastings Co. v. Southern Natural Gas Corp., 45 Ga. App. 774 , 166 S.E. 56 (1932).

A power company that acquired an electric transmission line easement by condemnation in 1985 had not permanently ceased using the land under O.C.G.A. § 22-2-85 ; thus, the landowner from whom the land was acquired was not entitled to recover possession of the land. Although the company had not constructed a line across the property, the company maintained the property and planned to construct the line in question after 2010 and before 2020 to meet increased power demands. William E. Honey Bus. Interest, LLLP v. Ga. Power Co., 291 Ga. App. 44 , 661 S.E.2d 203 (2008), cert. denied, No. S08C1408, 2008 Ga. LEXIS 678 (Ga. 2008).

Applicability. - Since the original condemnor acquired part of a 50-foot easement by grant and part by condemnation, O.C.G.A. § 22-2-85 was inapplicable in a condemnation action brought by the condemnor's licensee to change the use of the easement from a petroleum pipeline to a fiber optic communications system; even if O.C.G.A. § 22-2-85 were applicable, it was not shown that the condemnor had ceased using the pipeline for the purpose of conducting its business. Witcher v. Level 3 Communs., LLC, 272 Ga. App. 611 , 612 S.E.2d 816 (2005).

Condemned property reverts to owner if purpose permanently ceases. - The clause in this section relating to the reverter of the condemned use means that if the use of the condemned property in the business to be served permanently ceases, the property is not to be used for other purposes, but the easement ceases or reverts to the then owners of the servient land. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591 , 84 L. Ed. 1013 (1940).

When a street railway condemned land for a trolley, it acquired an easement, not fee simple title. Therefore, the railway's interest reverted to the owner, her heirs and assigns, when the land was no longer used as a trolley line. Cobb County v. Crew, 267 Ga. 525 , 481 S.E.2d 806 (1997).

Although no deed need be executed, it will control if one is given. City of Atlanta v. Jones, 135 Ga. 376 , 69 S.E. 571 (1910).

Term "right of way" as used in § 22-1-6 is limited by this section, so that it is descriptive of the tenure only. A county may construct a highway thereon. Atlanta, B. & Atl. Ry. v. County of Coffee, 152 Ga. 432 , 110 S.E. 214 (1921). See also Georgia G.R.R. v. Venable, 129 Ga. 341 , 58 S.E. 864 (1907).

Condemnation of land abutting street. - The property of a land owner abutting a street may be condemned, although his interest in said street is not. Bridwell v. Gate City Term. Co., 127 Ga. 520 , 56 S.E. 624 , 10 L.R.A. (n.s.) 909 (1907).

When corporation acquires right to use property by condemnation under this section, the condemnation does not vest in the condemnor only a personal right of use during the life or ownership of the condemnor, but vests the interest condemned in the condemnor just as though it had been conveyed to it. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591 , 84 L. Ed. 1013 (1940).

When business is transferred to another who continues to use condemned property as before, the condemnor is still using it through his transferee, even though he die, or be dissolved if a corporation and the right to the use of the property acquired through condemnation does not cease. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591 , 84 L. Ed. 1013 (1940).

Cited in Central of Ga. Ry. v. Lawley, 33 Ga. App. 375 , 126 S.E. 273 (1925); State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204 , 199 S.E. 793 (1938); State Hwy. Dep't v. Peavy, 204 Ga. 99 , 48 S.E.2d 726 (1948); Taylor v. Georgia Power Co., 129 Ga. App. 89 , 198 S.E.2d 701 (1973); DOT v. Garrett, 154 Ga. App. 104 , 267 S.E.2d 643 (1980); Georgia Dep't of Transp. v. Woodard, 254 Ga. 587 , 331 S.E.2d 557 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 130-133, 145-149.

C.J.S. - 29A C.J.S., Eminent Domain, § 191. 30 C.J.S., Eminent Domain, §§ 449-461.

ALR. - Reversion of title upon abandonment or vacation of public street or highway, 18 A.L.R. 1008 , 70 A.L.R. 564 .

Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98 .

Provision for taking or retaining possession pending appeal in condemnation proceeding, 55 A.L.R. 201 .

Title of interest acquired by railroad in exercise of eminent domain as fee or easement, 155 A.L.R. 381 .

Condemnation, proceeding therefor, or prospect thereof, as affecting marketability of title, 21 A.L.R.2d 792.

Who, as between condemnor and condemnee, bears risk of loss or destruction of property occurring after commencement but before completion of eminent domain proceedings, 89 A.L.R.2d 1076.

Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

22-2-86. Manner of payment where owner a minor or under disability and without a legal representative.

If the person entitled to payment of the award or judgment is a minor or under any disability and has no legal representative entitled to receive the money, the money shall be paid to the judge of the probate court of the county, who shall at once cause the money to be invested. To this end, the judge of the probate court of the county of the disabled owner's residence shall appoint a guardian or other proper representative to receive the money and manage the property in which it may be invested.

(Ga. L. 1894, p. 95, § 28; Civil Code 1895, § 4684; Civil Code 1910, § 5234; Code 1933, § 36-607.)

RESEARCH REFERENCES

ALR. - Personal liability of purchaser of property subject to chattel mortgage, to the mortgagee, 100 A.L.R. 1038 .

ARTICLE 2 PROCEEDING BEFORE SPECIAL MASTER

Cross references. - Succession by auditors to duties previously performed by masters in superior courts of state, § 9-7-1 .

Law reviews. - For article, "Condemning Local Government Condemnation," see 39 Mercer L. Rev. 11 (1987).

JUDICIAL DECISIONS

Article does not violate state Constitution. - This article, which provides procedures for the condemnation of private property for public use by the state and other political entities, does not as a whole violate the prohibition against taking land for public purposes without just compensation as this article provides an adequate method for determining the value of property sought to be taken and for just and adequate compensation to be first paid. O.K., Inc. v. State Hwy. Dep't, 213 Ga. 666 , 100 S.E.2d 906 (1957).

Condemnee is not deprived of due process and equal protection of the laws under this article. Collins v. Metropolitan Atlanta Rapid Transit Auth., 163 Ga. App. 168 , 291 S.E.2d 742 (1982).

This article meets due process requirements in that it gives the condemnee notice as well as reasonable opportunity for preparation and for a hearing. Due process requirements are satisfied if he has a reasonable notice and opportunity to be heard, and to present his claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it. Brown v. Georgia Power Co., 134 Ga. App. 784 , 216 S.E.2d 613 (1975).

Due process requirements are satisfied by this article in that it gives the condemnee notice as well as an opportunity for a hearing. Sweat v. Georgia Power Co., 235 Ga. 281 , 219 S.E.2d 384 (1975).

Legislature has provided adequate method for determining compensation. - The Legislature, by enacting §§ 22-2-102 , 22-2-108 , and 22-2-112 , has provided an adequate method for determining the just and adequate compensation of property sought to be condemned under this article, and § 22-2-110 of the act in no wise limits the master to an arbitrary finding. Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959).

Constitutional guarantee of trial by jury does not extend to eminent domain proceedings. Sweat v. Georgia Power Co., 235 Ga. 281 , 219 S.E.2d 384 (1975).

Purpose of this article is to provide for speedy ascertainment of just and adequate compensation under the supervision of the superior court, and in such a role the special master is simply an extension of the court, appointed by it as a semi-judicial assistant. West End Whses., Inc. v. Dunlap, 141 Ga. App. 333 , 233 S.E.2d 284 (1977).

The purpose of this article is to provide a simpler and more effective method of condemnation where there is a necessity for a quick determination or where, for several reasons, a judicial supervision is desirable. Fountain v. Marta, 147 Ga. App. 465 , 249 S.E.2d 296 (1978).

This article provides cumulative and summary method for condemnation of property. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

The 1967 amendment to this article should be construed as evidencing legislative intent that special master proceeding be considered a "supplementary" and "cumulative" form of condemnation in all cases wherein condemnor otherwise possesses power of eminent domain. Mallory v. Upson County Bd. of Educ., 163 Ga. App. 377 , 294 S.E.2d 599 (1982).

And it attempts to achieve more perfect conciliation between parties by providing for the use of experienced, competent attorneys as special masters. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66 , 42 L. Ed. 2 d 65 (1974).

But special master's rulings may be excepted to by trial court and disposed of in like manner before any award, which is the end product of the proceeding, is offered to the court and a judgment of taking is entered up based on the award. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66 , 42 L. Ed. 2 d 65 (1974).

This article is not controlled by Civil Practice Act, (Ch. 11, T. 9) but is a special statutory proceeding. Roberts v. Wise, 140 Ga. App. 1 , 230 S.E.2d 320 (1976).

Special master procedure is in rem proceeding which contains no requirement of negotiation. Harwell v. Georgia Power Co., 154 Ga. App. 142 , 267 S.E.2d 769 , aff'd, 246 Ga. 203 , 269 S.E.2d 464 (1980).

Procedure not available for taking property previously dedicated to public use. - In absence of express authority, the condemning procedure authorized by this article is not available for use by condemnors who seek to take property previously dedicated to a public use. Georgia S. & Fla. Ry. v. City of Warner Robins, 107 Ga. App. 370 , 130 S.E.2d 151 (1963).

Condemnor chooses its method of procedure, and it is bound by the provisions of law following its own election. The property owner is also bound, although he did not choose the method of procedure. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

If the condemnor elects to use the Special Master Law, then it is bound by the provisions of law following its own election. Wrege v. Cobb County, 186 Ga. App. 512 , 367 S.E.2d 817 , cert. denied, 186 Ga. App. 919 , 367 S.E.2d 817 (1988).

Condemnor has no rights except those expressly granted to it by statute, and those rights can be exercised only when every prerequisite to their exercise has been fully met. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Large discretion is vested in condemnor in selection of property to be condemned, and such selection should not be interfered with or controlled by the courts, unless made in bad faith, or capriciously or wantonly injurious, or in some respect beyond the privilege conferred by statute or its charter. Miles v. Brown, 223 Ga. 557 , 156 S.E.2d 898 (1967).

Amendment of petition for condemnation. - Petition for condemnation under this article can be amended by condemnor to make a more specific description of right of way to be condemned. Dorsey v. DOT, 248 Ga. 34 , 279 S.E.2d 707 (1981).

Proceeding by county board of education. - Superior court did not err in holding that condemnor county board of education was authorized to proceed under this article in exercising power of eminent domain. Mallory v. Upson County Bd. of Educ., 163 Ga. App. 377 , 294 S.E.2d 599 (1982).

Determination of necessity of taking and of rights of condemnee. - This article vests a broad discretion in the condemning authority as to the necessity for the taking and provides that other matters material to the rights of the condemnee generally will be determined under proper pleadings in the pending condemnation proceedings. Miles v. Brown, 223 Ga. 557 , 156 S.E.2d 898 (1967).

Private company possessing power of eminent domain is authorized to employ condemnation procedure of this article. Nodvin v. Georgia Power Co., 125 Ga. App. 821 , 189 S.E.2d 118 (1972).

State-created entity not authorized to condemn for public purposes. - Where the condemnor is not the state, or a part of the state or an agency of the state but a creature created by the state, it is not authorized to condemn property in its own name for public purposes under this article. Scarlett v. Georgia Ports Auth., 223 Ga. 417 , 156 S.E.2d 77 (1967).

Condemnor may take and use property after required preliminary procedures. - Under this article, the condemning body, after the required preliminary procedures, may take the property, use it, and proceed to change it to a degree that irrevocable harm could be done before the issue of incompatible use is determined. Georgia S. & Fla. Ry. v. City of Warner Robins, 107 Ga. App. 370 , 130 S.E.2d 151 (1963).

Statutory construction where procedural provisions incomplete. - Where wording is taken from a prior statute, or where this article fails to be complete within itself, then reference to provisions for proceedings before assessors is permitted to fill in the void. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Property owner not entitled to hearing on necessity of taking. - The necessity or expediency of taking property for public use is a legislative question upon which the owner is not entitled to a hearing under U.S. Const., Amend. 14 and Ga. Const. 1976, Art. I, Sec. I, Para. I (see, now Ga. Const. 1983, Art. I, Sec. I, Para I). Miles v. Brown, 223 Ga. 557 , 156 S.E.2d 898 (1967).

Nor can owner defeat condemnation proceeding by injunction petition. - The owner of private property cannot, by petition for injunction, defeat a condemnation proceeding or litigate the issue that the property sought to be condemned is being condemned for private rather than public purposes; such issue must be litigated in the condemnation proceeding. Reeves v. City of Atlanta, 216 Ga. 592 , 118 S.E.2d 378 (1961).

Owner of land cannot prevent condemnation because there is other property which might be suitable for purpose. Miles v. Brown, 223 Ga. 557 , 156 S.E.2d 898 (1967).

Burden of proving value of land and consequential damages on condemnor. - The burden of proof to show the value of the land taken and the consequential damages to the remaining property, if any, is on the condemnor. State Hwy. Dep't v. Smith, 111 Ga. App. 292 , 141 S.E.2d 590 (1965).

Weight of evidence of property value before and after condemnation. - Evidence of the difference between the value of the whole property (that taken and that not taken) before a taking and after the taking is without probative value as to the actual value of the land taken and the consequential damage to that not taken. State Hwy. Dep't v. Mann, 110 Ga. App. 390 , 138 S.E.2d 610 (1964).

Exceptions to findings of special master. - When legal objections are raised before and passed upon by the special master, to obtain review of these objections exceptions must be taken to the master's findings prior to the superior court's entry of an order and judgment condemning the property; additionally, if either party is dissatisfied with the master's award as regards value, they may, within ten days from the time the award is filed, enter in writing an appeal from the award to the superior court and it shall be the duty of the judge to cause an issue to be made and tried by a jury. Parlato v. City of Atlanta, 151 Ga. App. 235 , 259 S.E.2d 217 (1979).

This article limits appeal to question of value only, and provides that all other issues including the right to condemn, the interest condemned, and everything else preliminary to the actual vesting of title should be decided at the first hearing. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961); Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66 , 42 L. Ed. 2 d 65 (1974).

In condemnation cases, the sole question for the consideration of the jury, upon an appeal from an award of the assessors or from an award of a special master, is the amount of compensation to be paid to the condemnee for the property taken under the condemnation proceeding and the amount of damages to the remaining property of the condemnee, if any. State Hwy. Dep't v. Smith, 111 Ga. App. 292 , 141 S.E.2d 590 (1965).

Appellate review of question of what property interest is taken in a condemnation under the special master procedure is allowed when properly raised and preserved. Harwell v. Georgia Power Co., 154 Ga. App. 142 , 267 S.E.2d 769 , aff'd, 246 Ga. 203 , 269 S.E.2d 464 (1980).

Action for recovery of damages resulting from condemnor's negligence is not proper in condemnation proceedings. Georgia Power Co. v. Jones, 122 Ga. App. 614 , 178 S.E.2d 265 (1970).

There is no law permitting recovery of damages to personalty as such on appeal of a finding by the special master fixing value of real property alone. State Hwy. Dep't v. Mann, 110 Ga. App. 390 , 138 S.E.2d 610 (1964).

Cited in Anthony v. State Hwy. Dep't, 215 Ga. 853 , 113 S.E.2d 768 (1960); Fulton County v. Aronson, 216 Ga. 497 , 117 S.E.2d 166 (1960); State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964); State Hwy. Dep't v. Respess, 111 Ga. App. 421 , 142 S.E.2d 73 (1965); Avary v. City of Atlanta, 221 Ga. 76 , 143 S.E.2d 183 (1965); Bowers v. Fulton County, 221 Ga. 731 , 146 S.E.2d 884 (1966); Donehoo v. Fulton County, 116 Ga. App. 368 , 157 S.E.2d 323 (1967); City of Atlanta v. Airways Parking Co., 225 Ga. 173 , 167 S.E.2d 145 (1969); State Hwy. Dep't v. Howard, 119 Ga. App. 298 , 167 S.E.2d 177 (1969); Phillips v. Georgia Power Co., 225 Ga. 289 , 168 S.E.2d 150 (1969); Jones v. Georgia Power Co., 225 Ga. 510 , 169 S.E.2d 810 (1969); DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695 , 182 S.E.2d 160 (1971); White v. Georgia Power Co., 237 Ga. 341 , 227 S.E.2d 385 (1976); City of Atlanta v. First Nat'l Bank, 154 Ga. App. 658 , 269 S.E.2d 878 (1980); White v. Georgia Power Co., 247 Ga. 256 , 274 S.E.2d 565 (1981); Craven v. Georgia Power Co., 248 Ga. 79 , 281 S.E.2d 568 (1981); Dougherty County v. Burt, 168 Ga. App. 166 , 308 S.E.2d 395 (1983); White v. Ringgold Tel. Co., 334 Ga. App. 325 , 779 S.E.2d 378 (2015).

OPINIONS OF THE ATTORNEY GENERAL

It is responsibility of special master to establish value of property condemned, and nothing more; his duty is to assess the value of the property taken or damaged, and also to assess the consequential damages and benefits to the property not taken. 1969 Op. Att'y Gen. No. 69-494.

Date of taking is date of special master's or assessor's award. 1970 Op. Att'y Gen. No. 70-116.

Appraisal to be updated to date of hearing before special master. - When condemnation is necessary, the appraiser should be instructed to update his appraisal to the date of the hearing before the special master; this appraisal should contemplate that the amount of the award will be paid into court by condemnor within ten days of such hearing by the special master, and this is the amount that the appraiser should be prepared to testify to if and when there is an appeal of the matter to a jury in the superior court by either party thereto. 1970 Op. Att'y Gen. No. 70-116.

Payment of city or county taxes is not proper element of damages in condemnation case. 1969 Op. Att'y Gen. No. 69-494.

Responsibility for payment of taxes on condemned property. - The payment of property taxes is a responsibility of the landowner only so long as he, in fact, owns the property. The property owner or condemnee would be responsible for payment of taxes up to the date of taking; after that time, the responsibility for the payment of these taxes would lie upon the condemning body, if in fact that body is an entity which would have the responsibility for payment of these taxes. 1969 Op. Att'y Gen. No. 69-494.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 375-380, 409.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 209-221. 30 C.J.S., Eminent Domain, §§ 276-280, 292-305.

ALR. - Limitation applicable to action or proceeding by owner for compensation where property is taken in exercise of eminent domain without antecedent condemnation proceeding, 123 A.L.R. 676 .

Condemnor's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

Right to open and close argument in trial of condemnation proceedings, 73 A.L.R.2d 613.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Necessity of trial or proceeding separate from main condemnation trial or proceeding, to determine divided interest in state condemnation award, 94 A.L.R.3d 696.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific cover, 26 A.L.R.4th 68.

22-2-100. "Condemning body" and "condemnor" defined.

As used in this article, "condemning body" or "condemnor" means:

  1. The State of Georgia or any branch or any department, board, commission, agency, or authority of the executive branch of the government of the State of Georgia;
  2. Any county or municipality of the State of Georgia;
  3. Any housing authority with approval of the governing authority of the city or county as provided in Code Section 8-3-31.1;
  4. Any other political subdivision of the State of Georgia which possesses the power of eminent domain; and
  5. All public utilities that possess the right or power of eminent domain.

    (Ga. L. 1957, p. 387, § 1; Ga. L. 1962, p. 461, § 1; Ga. L. 1967, p. 825, § 1; Ga. L. 2006, p. 39, § 7/HB 1313.)

The 2006 amendment, effective April 4, 2006, inserted "or any department, board, commission, agency, or authority of the executive branch" in paragraph (1); added "with approval of the governing authority of the city or county as provided in Code Section 8-3-31.1" at the end of paragraph (3); substituted "possesses" for "is vested with" near the end of paragraph (4); and substituted "All public utilities that possess" for "All other persons possessing" at the beginning of paragraph (5). For applicability, see Editor's notes.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015).

JUDICIAL DECISIONS

Legislative intent of 1967 amendment was to vest power companies which supply electricity to the public with the power to condemn in fee simple for public purposes and subject to the protective statutory procedures provided in the act. Harwell v. Georgia Power Co., 246 Ga. 203 , 269 S.E.2d 464 (1980).

This article is ample authority for power company to condemn in fee simple whenever it can show a public purpose and necessity. Harwell v. Georgia Power Co., 246 Ga. 203 , 269 S.E.2d 464 (1980).

Actions to condemn sewer easements are properly brought under this article. Threatt v. Fulton County, 266 Ga. 466 , 467 S.E.2d 546 (1996).

Railroads as condemnors. - See Central of Ga. R.R. v. Georgia Pub. Serv. Comm'n, 257 Ga. 217 , 356 S.E.2d 865 (1987).

Contract rights after condemnation. - County water and sewer authority could charge a developer tap fees after the authority acquired, by condemnation under O.C.G.A. § 22-2-100 et seq., the developer's contract with a private company which allowed termination at will; another provider's condemned contracts did not allow for termination, and thus, a rational basis existed under the Fourteenth Amendment for treating the developer differently. Highland Props. v. Lee County Utils. Auth., F. Supp. 2d (M.D. Ga. Sept. 30, 2005).

Challenge to special masters award. - Trial court properly refused to dismiss a landowner's appeal on grounds that it failed to express dissatisfaction with the compensation awarded by the special master, as it provided the utility with notice that the landowner was objecting to the valuation given on the property; moreover, in light of the interest that the utility acquired in the property, and the purposes for which it intended to use that property, consequential damages potentially represented a significant portion of the compensation the landowner could recover. Ga. Power Co. v. Stowers, 282 Ga. App. 695 , 639 S.E.2d 605 (2006).

Condemnation of a property owner's land by a city was upheld on appeal, as was the trial court's judgment entered upon a jury verdict in the amount of $63,361 for the property and an award of attorney fees to the city, because the property owner never challenged the valuation made by a special master and also removed the amount awarded from the registry, thereby estopping the owner from challenging the legality of the taking on appeal. Mayo v. City of Stockbridge, 285 Ga. App. 58 , 646 S.E.2d 79 (2007), cert. denied, No. S07C1279, 2007 Ga. LEXIS 707 (Ga. 2007).

Cited in Herron v. Metropolitan Atlanta Rapid Transit Auth., 177 Ga. App. 201 , 338 S.E.2d 777 (1985); Stafford v. Bryan County Bd. of Educ., 212 Ga. App. 6 , 440 S.E.2d 774 (1994); Clary v. City of Stockbridge, 300 Ga. App. 623 , 686 S.E.2d 288 (2009).

22-2-101. Effect of article on other methods of condemnation; intent of article.

This article shall be supplementary to and cumulative of the methods of condemnation described in Articles 1 and 3 of this chapter in cases in which the state, or any branch of the government of the state, or any county, municipality, or other political subdivision of the state, or any housing authority, or any other person possessing the power of eminent domain is concerned. This article is intended to provide a simpler and more effective method of condemnation in those cases where a judicial supervision of the proceedings is desirable by reason of the necessity for a quick determination of the just and adequate compensation to be paid the owner of the property or interest subject to be condemned, or by reason of the number of parties at interest or the conflicting interests of such parties, or in cases where there are parties who are non compos mentis or who are not sui juris or who are nonresidents, or in cases where there are conflicting interests or doubtful questions. In all particulars not otherwise specially provided for in this article, the court shall conform its procedure as nearly as possible to Articles 1 and 3 of this chapter.

(Ga. L. 1957, p. 387, § 2.)

JUDICIAL DECISIONS

Purpose of this article is to provide an effective method of condemnation where judicial supervision of the procedure is desirable. Golfland, Inc. v. Thomas, 107 Ga. App. 563 , 130 S.E.2d 757 (1963).

The primary purpose of special master proceeding under this article is to secure a quick determination of the compensation to be paid. City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975).

The special master method of condemnation is intended to be an expeditious method of arriving at a just and adequate compensation to be paid a citizen before his interest in property may be condemned. Such is accomplished by having a special master appointed to hear evidence as to the value of the property taken and damage done and then to make an award upon which the superior court can enter a judgment immediately vesting title in the condemnor upon payment of the amount awarded. Shoemaker v. Department of Transp., 240 Ga. 573 , 241 S.E.2d 820 (1978).

This article does not repeal other statutory provisions for condemnation of property but is supplementary to and cumulative of them. City of Gainesville v. Loggins, 116 Ga. App. 548 , 158 S.E.2d 287 (1967), rev'd on other grounds, 224 Ga. 114 , 160 S.E.2d 374 (1968).

Condemnee not allowed to raise issue of right of condemnor to take property for first time on appeal. - The special master method of condemnation is intended to be an expeditious method of arriving at the just and adequate compensation to be paid a citizen before his interest in property may be condemned; allowing a condemnee to raise, for the first time on appeal from the special master's award, the right of the condemnor to take the property sought to be condemned, would obstruct this purpose. Ward v. Housing Auth., 157 Ga. App. 825 , 278 S.E.2d 715 (1981).

Sufficient compliance with O.C.G.A. § 22-1-6 shown. - Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling the owners' exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that the condemnor could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6 . White v. Ringgold Tel. Co., 334 Ga. App. 325 , 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

Cited in Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961); Leach v. Georgia Power Co., 228 Ga. 16 , 183 S.E.2d 755 (1971); Nodvin v. Georgia Power Co., 125 Ga. App. 821 , 189 S.E.2d 118 (1972); Smith v. Georgia Power Co., 131 Ga. App. 380 , 205 S.E.2d 916 (1974); Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976); Fourth Nat'l Bank v. Grant, 140 Ga. App. 78 , 230 S.E.2d 60 (1976); Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588 , 239 S.E.2d 387 (1977); Allen v. Hall County, 156 Ga. App. 629 , 275 S.E.2d 713 (1980); Wrege v. Cobb County, 186 Ga. App. 512 , 367 S.E.2d 817 (1988); Banks v. Georgia Power Co., 220 Ga. App. 84 , 469 S.E.2d 218 (1996).

22-2-102. Filing of petition of condemnation; order for parties to appear before special master, make known their rights or interests, and other matters; time of hearing before special master; directions for notice and service thereof; attachment of process to petition; cause to proceed in rem.

  1. In addition to the requirements set forth in Chapter 1 of this title, whenever it is desirable, for any reason, to arrive at a quick and certain determination of the compensation to be paid first to the condemnee for the taking or damaging of private property, the condemnor shall:
    1. File a petition in a superior court having jurisdiction for a judgment in rem against the property or interest therein, as provided in Code Section 22-2-130; and
    2. At or before the filing of the petition, present a copy of the petition to a judge of the superior court of the county wherein the property or interest sought to be condemned is located. Thereupon, unless waived by the parties the judge shall have a hearing in court, in chambers, or by telephone with the parties not less than ten days nor more than 30 days from the filing of the petition to appoint a special master. After such hearing, the judge shall make an order requiring the condemnor, the person in possession of the property or interest, and each person with a legal claim or interest to appear at a hearing before a special master at a time and place specified in the order and to make known their rights, if any, in and to the property or interest sought to be condemned, their claims as to the value of the property or interest, and any other matters material to their respective rights.
  2. The hearing before the special master shall take place not less than 30 days nor more than 60 days after the date of the entry of the order appointing the special master.
  3. The order shall give such directions for notice and the service thereof as are appropriate and as are consistent with this article, in such manner as to provide most effectively an opportunity to all parties at interest to be heard. In condemnations for purposes of constructing or expanding one or more electric transmission lines, in addition to service of the order, a copy of the order shall be mailed by certified mail or sent by statutory overnight delivery to any person shown by the public ad valorem tax records of the county in which the property is located to have an interest in the property and to any other person having open and obvious possession of the property. It shall not be necessary to attach any other process to the petition except the order so made, and the cause shall proceed as in rem.

    (Ga. L. 1957, p. 387, § 5; Ga. L. 2004, p. 568, § 1; Ga. L. 2006, p. 39, § 8/HB 1313.)

The 2004 amendment, effective July 1, 2004, substituted "Except in condemnations for purposes of constructing or expanding one or more electric transmission lines, the" for "The" at the beginning of the fourth sentence, and added the fifth and seventh sentences.

The 2006 amendment, effective April 4, 2006, substituted the present provisions of this Code section for the former provisions, which read: "Whenever it is desirable, for any reason, to arrive at a quick and certain determination of the compensation to be paid first to the condemnee for the taking or damaging of private property, the condemnor shall file a petition in a superior court having jurisdiction for a judgment in rem against the property or interest therein, as provided in Code Section 22-2-130. At or before the filing of the petition, the condemnor shall present a copy of the petition to a judge of the superior court of the county wherein the property or interest sought to be condemned is located. Thereupon, the judge shall make an order requiring the condemnor, the person in possession of the property or interest, and any other person known to have any rights in the property or interest to appear at a hearing before a special master at a time and place specified in the order and to make known their rights, if any, in and to the property or interest sought to be condemned, their claims as to the value of the property or interest, and any other matters material to their respective rights. Except in condemnations for purposes of constructing or expanding one or more electric transmission lines, the hearing before the special master shall take place not less than ten days nor more than 15 days after the date of service of the order. In condemnations for purposes of constructing or expanding one or more electric transmission lines, the hearing before the special master shall take place not less than 30 days and not more than 40 days after the date of service of the order. The order shall give such directions for notice and the service thereof as are appropriate and as are consistent with this article, in such manner as to provide most effectively an opportunity to all parties at interest to be heard. In condemnations for purposes of constructing or expanding one or more electric transmission lines, in addition to service of the order, a copy of the order shall be mailed by certified mail to any person shown by the public ad valorem tax records of the county in which the property is located to have an interest in the property and to any other person having open and obvious possession of the property. It shall not be necessary to attach any other process to the petition except the order so made, and the cause shall proceed as in rem." For applicability, see Editor's notes.

Editor's notes. - Ga. L. 2004, p. 568, § 3, not codified by the General Assembly, provides that the amendment to this Code section: "shall apply to the exercise of eminent domain to acquire easements or other property interests for which land acquisition negotiations for purposes of constructing or expanding one or more electric transmission lines begin on or after such date. The provisions of this Act relating to additional compensation, reconveyance, and quitclaim shall apply to easements and other property interests acquired on or after July 1, 2004, through the exercise of eminent domain."

Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2004 amendment of this Code section, see 21 Ga. St. U.L. Rev. 157 (2004). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009).

JUDICIAL DECISIONS

Procedure satisfies due process. - This section supplemented by §§ 22-2-107 and 22-2-108 provides reasonable notice and opportunity for a condemnee to be heard and therefore satisfies the constitutional provisions as to due process. Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959).

Government property not "private property." - "Private property" does not include property owned by a government or a governmental entity. DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985).

The Department of Transportation may not condemn municipally owned property as the legislature has not clearly granted such authority or created a procedure therefore, and as such grant may not be implied from statutory provisions generally establishing a procedure for state agencies to condemn "private property." DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985).

Condemnation by special master is expeditious method of arriving at just and adequate compensation to be paid a citizen before his interest in property may be condemned. Such is accomplished by having a special master appointed to hear evidence as to the value of the property taken and the damage done and then to make an award upon which the superior court can enter a judgment immediately vesting title in the condemnor upon payment of the amount awarded. Shoemaker v. Department of Transp., 240 Ga. 573 , 241 S.E.2d 820 (1978); Allen v. Hall County, 156 Ga. App. 629 , 275 S.E.2d 713 (1980).

All legal issues relating to condemnation may be raised and determined in special master proceeding. If no exceptions are taken to the master's findings or no regular appeal taken from the judgment based on his award, the only issue remaining is that of value. Allen v. Hall County, 156 Ga. App. 629 , 275 S.E.2d 713 (1980).

Noncompliance with notice requirement. - Condemnation hearing before a special master held less than ten days after the condemnee was served with the order was void for violation of the requirements of this section. Black v. Fayette County, 265 Ga. 175 , 453 S.E.2d 692 (1995).

Functions of special master. - Though the primary duty of the special master is to ascertain the value of the property sought to be condemned, the special master is authorized to hear and determine any legal objections that may be raised by the parties, including, the right of the condemnor to condemn, the interest, the nature of the interest taken and the effect of the condemnation upon the respective rights of the parties. Shoemaker v. Department of Transp., 240 Ga. 573 , 241 S.E.2d 820 (1978); Allen v. Hall County, 156 Ga. App. 629 , 275 S.E.2d 713 (1980).

Condemnor vested with broad discretion as to necessity of taking. - It is clear that in enacting this article, the General Assembly intended to vest a very broad discretion in the condemning authority as to the necessity for the taking, and that "other matters material" to the rights of condemnees generally might be determined under proper pleadings in the case. City of Carrollton v. Walker, 215 Ga. 505 , 111 S.E.2d 79 (1959).

And as to selection of property. - A large discretion is vested in a party having the right to condemn, in the selection of particular property to be condemned. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976).

Time for filing of defensive pleadings (as opposed to their sufficiency) is governed by the special statutory procedure of this article. Nodvin v. Georgia Power Co., 125 Ga. App. 821 , 189 S.E.2d 118 (1972).

Amendment of petition to provide more specific description. - A condemnor may amend its petition by striking two paragraphs describing the proposed right of way and the uses of the right of way, and stating two new paragraphs, where all that the amendment does is to put the condemnees on notice of a more specific description of the right of way sought to be condemned and the proposed use of the right of way. Leach v. Georgia Power Co., 228 Ga. 16 , 183 S.E.2d 755 (1971).

Proceeding under general civil practice rules cannot follow final adjudication. - Where there has been a final adjudication in a special master condemnation proceeding which is designed to be expeditious, a party may not later tender an answer to the petition under general rules of civil practice. Nodvin v. Georgia Power Co., 125 Ga. App. 821 , 189 S.E.2d 118 (1972).

Judicial review of master's findings. - If the special master makes findings not only as to just and adequate compensation for the property taken but also as to other matters material to the condemnee's respective rights, the proper method for the condemnee to obtain judicial review of the special master's findings in regard to matters other than the just and adequate compensation for the property taken is to file objections to the special master's award prior to the court entering an order and making the award a judgment of the court. Georgia Power Co. v. Baggarley, 133 Ga. App. 399 , 211 S.E.2d 23 (1974).

When legal objections are raised before and passed upon by the special master, to obtain review of these objections exceptions must be taken to the master's findings prior to the superior court's entry of an order and judgment condemning the property. If no exceptions are taken and the master's findings are made the judgment of the court, the court's judgment is final insofar as it adjudicates these legal issues, until set aside or reversed in a manner provided by law. Allen v. Hall County, 156 Ga. App. 629 , 275 S.E.2d 713 (1980).

Condemnee bound by decision to use special master. - Having chosen and agreed to use the special master proceeding, a condemnee is bound by the applicable law regarding the special master's proceeding. Metropolitan Atlanta Rapid Transit Auth. v. Central Parking Sys., 167 Ga. App. 649 , 307 S.E.2d 93 (1983).

Objections or exceptions must be specific. Litigants have a responsibility to make their timely objections or exceptions to the award of the special master in specific rather than in generalized form. Beck v. Cobb County, 180 Ga. App. 808 , 350 S.E.2d 818 (1986).

Failure to file exceptions constitutes waiver. - The failure of a party to file exceptions to the master's award for determination by the superior court results in a waiver of the party's right to further litigate any nonvalue issues. Beck v. Cobb County, 180 Ga. App. 808 , 350 S.E.2d 818 (1986).

Condemnation award and judgment, unexcepted to and unappealed from, is res judicata as to the issue of the existence and length of any leasehold interest. Therefore, the judgment in the condemnation proceeding is conclusive to all nonvalue issues raised on appeal. Allen v. Hall County, 156 Ga. App. 629 , 275 S.E.2d 713 (1980).

Description of property sought held sufficiently definite. - The condemnor's description of the right of way sought to be condemned was sufficiently definite when the petition (a) described with certainty the entire tract of land through which the right of way was to pass, (b) described the right of way in metes, bounds and distances, (c) described minutely the proposed construction of poles, lines, etc., for the transmission of electric current, and (d) included a plat showing the property sought to be condemned. Leach v. Georgia Power Co., 228 Ga. 16 , 183 S.E.2d 755 (1971).

Dismissal of condemnation petition inappropriate. - Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling their exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that it could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6 . White v. Ringgold Tel. Co., 334 Ga. App. 325 , 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

Cited in Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961); Wiggins v. City of Macon, 120 Ga. App. 197 , 169 S.E.2d 667 (1969); Leach v. Georgia Power Co., 228 Ga. 16 , 183 S.E.2d 755 (1971); City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975); Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588 , 239 S.E.2d 387 (1977); Hendley v. Housing Auth., 160 Ga. App. 221 , 286 S.E.2d 463 (1981); Stephens v. Department of Transp., 170 Ga. App. 784 , 318 S.E.2d 167 (1984); McBroom v. Georgia Power Co., 192 Ga. App. 81 , 383 S.E.2d 634 (1989); Styers v. Atlanta Gas Light Co., 263 Ga. 856 , 439 S.E.2d 640 (1994); Ga. Power Co. v. Stowers, 282 Ga. App. 695 , 639 S.E.2d 605 (2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 390-394.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 186-192, 196-205, 218, 219, 236, 242-249. 30 C.J.S., Eminent Domain, §§ 276-279, 292.

ALR. - Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

22-2-102.1. Petitioning superior court for judgment in rem.

In addition to the requirements set forth in Code Section 22-1-10, whenever it shall be necessary for such condemning body to take or damage private property, or any interest or easement therein, in pursuance of any law so authorizing, for any public use, and where, by reason of the necessities of the public needs, of which the condemning body shall be the exclusive judge, and it shall be desirable for these reasons to have a quick and effective adjudication of the just and adequate compensation to be paid the owner or owners of such property before taking the same, and it shall be desirable to have a judicial ascertainment and judicial supervision of all questions and proceedings connected with the matter, such condemning body may, through any authorized representative, petition the superior court of the county having jurisdiction, for a judgment in rem against said property, or any easement or other interest in said property, condemning the same in fee simple to the use of the petitioner upon payment of just and adequate compensation therefor.

(Ga. L. 1957, p. 387, § 3; Code 1981, § 22-2-102.1 , enacted by Ga. L. 1983, p. 3, § 16.1; Ga. L. 2006, p. 39, § 9/HB 1313.)

Effective date. - This Code section became effective January 25, 1983.

The 2006 amendment, effective April 4, 2006, substituted "In addition to the requirements set forth in Code Section 22-1-10, whenever" for "Whenever" at the beginning; and substituted "for any public use" for "for any public purpose". For applicability, see Editor's notes.

Editor's notes. - The provisions of this Code section were previously enacted in substantially similar form by Ga. L. 1957, p. 387, § 3. However, those provisions were not enacted as part of the original Code by the Code enactment Act (Ga. L. 1981, Ex. Sess., p. 8).

Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For note, "Standards of Judicial Review of Condemnation Proceedings Under Georgia's Special Master's Act," see 20 Ga. St. B.J. 82 (1983).

JUDICIAL DECISIONS

Authority of special master. - The provision in this Code section that "the condemning body shall be the exclusive judge" of the public need does not give the condemning authority an absolute right of taking based upon its own determination of necessity. The special master has the authority to hear and determine any legal objection to the taking. Central of Ga. Elec. Membership Corp. v. Mills, 196 Ga. App. 882 , 397 S.E.2d 137 (1990).

Application of presumption limited. - The presumption that the right to condemn for a valid public purpose, absent a finding of its bad faith, applies only to a finding that a condemnation is necessary under O.C.G.A. § 22-2-102.1 . City of Stockbridge v. Meeks, 283 Ga. App. 343 , 641 S.E.2d 584 (2007).

Condemnor is the exclusive judge of necessity in condemnation for public purposes. - Under Georgia law, the condemnor is the exclusive judge of necessity in the condemnation of private property for public purposes. Mosteller Mill, Ltd. v. Ga. Power Co., 271 Ga. App. 287 , 609 S.E.2d 211 (2005).

Sufficient compliance with O.C.G.A. § 22-1-6 shown. - Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling the owners' exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that the condemnor could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6 . White v. Ringgold Tel. Co., 334 Ga. App. 325 , 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

Ordinance infringing on utility's eminent domain power. - Forsyth County, Ga., Unified Development Code §§ 21-6.1 and 21-6.5, were defective because they required a utility to successfully comply with the ordinance's procedures, and authorized the county to deny "any or all" portions of an application; as such, they were unconstitutional infringements on the utility's legislativelydelegated power of eminent domain. Forsyth County v. Ga. Transmission Corp., 280 Ga. 664 , 632 S.E.2d 101 (2006).

Cited in Banks v. Georgia Power Co., 220 Ga. App. 84 , 469 S.E.2d 218 (1996); Simmons v. Webster County, 225 Ga. App. 830 , 485 S.E.2d 501 (1997).

22-2-102.2. Contents of petition.

The petition referred to in Code Section 22-2-102.1 shall set forth:

  1. The facts showing the right to condemn;
  2. The property or interest to be taken or damaged;
  3. The names and residences of the persons whose property or interests are to be taken or otherwise affected, so far as known;
  4. A description of any unknown persons or classes of unknown persons whose rights in the property or interest are to be affected;
  5. A statement setting forth the necessity to condemn the private property and describing the public use for which the condemnor seeks the property; and
  6. Such other facts as are necessary for a full understanding of the cause. (Ga. L. 1957, p. 387, § 4; Code 1981, § 22-2-102.2 , enacted by Ga. L. 1983, p. 3, § 16.1; Ga. L. 2006, p. 39, § 10/HB 1313.)

Effective date. - This Code section became effective January 25, 1983.

The 2006 amendment, effective April 4, 2006, deleted "and" from the end of paragraph (4); added paragraph (5); and redesignated former paragraph (5) as paragraph (6). For applicability, see Editor's notes.

Editor's notes. - The provisions of this Code section were previously enacted in substantially similar form by Ga. L. 1957, p. 387, § 4. However, those provisions were not enacted as part of the original Code by the Code enactment Act (Ga. L. 1981, Ex. Sess., p. 8).

Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For survey article on real property law, see 59 Mercer L. Rev. 371 (2007). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007).

JUDICIAL DECISIONS

Right to condemn. - Condemnation petitions of a municipal airport commission that failed to show the consent of the city to such actions should have been dismissed for failing to state a claim upon which relief could be granted. Lopez-Aponte v. Columbus Airport Comm'n, 221 Ga. App. 840 , 473 S.E.2d 196 (1996).

County was authorized to exercise the county's right of eminent domain in connection with the expansion of a detention center because the county had jurisdiction over the maintenance of jails in the county under O.C.G.A. § 36-9-5(a) , and the operation of a jail constituted a public purpose pursuant to Ga. Const. 1983, Art. IX, Sec. II, Para. V; the property owner did not identify any general law limiting the right of the county to exercise the county's power of eminent domain. Brunswick Landing, LLC v. Glynn County, 301 Ga. App. 288 , 687 S.E.2d 271 (2009), cert. denied, No. S10C0558, 2010 Ga. LEXIS 246 (Ga. 2010).

Petition must sufficiently describe the property to be condemned. - Condemnor did not identify the land with sufficient specificity to convey a "danger tree maintenance" easement where the condemnor described a "transmission line" easement, but did not describe the land it wished to condemn to maintain the transmission lines. Mosteller Mill, Ltd. v. Ga. Power Co., 271 Ga. App. 287 , 609 S.E.2d 211 (2005).

Petition must plead public use. - Given that a city's condemnation petition failed to plead a proposed taking for public use in compliance with O.C.G.A. § 22-2-102.2(1) and (5), a trial court did not err by dismissing the city's condemnation petition. City of Stockbridge v. Meeks, 283 Ga. App. 343 , 641 S.E.2d 584 (2007).

Sufficient compliance with O.C.G.A. § 22-1-6 shown. - Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling the owners' exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that the condemnor could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6 . White v. Ringgold Tel. Co., 334 Ga. App. 325 , 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

22-2-103. Appointment of special master - Generally.

The special master provided for in this article shall be appointed by the judge or judges of the superior courts of each judicial circuit and shall discharge the duties provided for in this article. Nothing contained in this article shall be construed as limiting the number of special masters for the circuit, and any judge of the superior court may appoint a special master for any particular case or cases. The special master so appointed must be a competent attorney at law, be of good standing in his profession, and have at least three years' experience in the practice of law. His relation and accountability to the court shall be that of an auditor or master in the general practice existing in this state. He shall hold office at the pleasure of the judge and shall be removable at any time with or without cause. Each special master shall take and file in the office of the clerk of the superior court of the county in which the property or interest to be condemned is situated, along with the order of his appointment, an oath or affidavit substantially in the form prescribed in Code Section 22-2-105.

(Ga. L. 1957, p. 387, § 6; Ga. L. 1984, p. 682, § 1.)

The 1984 amendment, effective July 1, 1984, substituted "in which the property or interest to be condemned is situated" for "of his residence" in the last sentence.

Cross references. - Auditors generally, Ch. 7, T. 9.

Law reviews. - For article, "The New Special Master Rule - Uniform Superior Court Rule 46: Life Jackets for the Courts in the Perfect Storm," see 15 (No. 4) Ga. St. B.J. 20 (2009).

JUDICIAL DECISIONS

Special master is officer of court. - The original arbiter is no longer merely a person especially equipped to determine value; he is a competent attorney under oath especially appointed by the court. He is, accordingly, an arm of the court, and his decision is judicial or at least quasi-judicial. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

A special master is a judicial officer within contemplation of the immunity doctrine. West End Whses., Inc. v. Dunlap, 141 Ga. App. 333 , 233 S.E.2d 284 (1977).

Rulings of neither auditor nor special master are immediately final. Wiggins v. City of Macon, 120 Ga. App. 197 , 169 S.E.2d 667 (1969); Sweat v. Georgia Power Co., 235 Ga. 281 , 219 S.E.2d 384 (1975).

Special master's rulings and findings may be excepted to in trial court and disposed of in like manner before any award, which is the end product of the proceeding, is offered to the court and a judgment of taking is entered up based on the award. Wiggins v. City of Macon, 120 Ga. App. 197 , 169 S.E.2d 667 (1969).

This section obviously contemplates the possibility of exceptions and an appeal thereon to the superior court. Sweat v. Georgia Power Co., 235 Ga. 281 , 219 S.E.2d 384 (1975).

Challenge to special masters award. - Trial court properly refused to dismiss a landowner's appeal on grounds that it failed to express dissatisfaction with the compensation awarded by the special master, as it provided the utility with notice that the landowner was objecting to the valuation given on the property; moreover, in light of the interest that the utility acquired in the property, and the purposes for which it intended to use that property, consequential damages potentially represented a significant portion of the compensation the landowner could recover. Ga. Power Co. v. Stowers, 282 Ga. App. 695 , 639 S.E.2d 605 (2006).

Special master not obligated to report findings and conclusions. - Although the relationship and accountability of a special master to the court is that of an auditor, a special master is not obligated by this section to render a report in the manner prescribed in § 9-7-8 containing his findings and conclusions upon the law and the facts. Sweat v. Georgia Power Co., 235 Ga. 281 , 219 S.E.2d 384 (1975).

Recommittal of the action to a new special master was proper, where the trial court found that the special master failed to apply the Georgia law relating to condemnation proceedings and found the award of the special master to be "incomplete" based on the failure of the special master to determine the just and adequate compensation of the property or interest taken. McBroom v. Georgia Power Co., 192 Ga. App. 81 , 383 S.E.2d 634 (1989).

Cited in Leach v. Georgia Power Co., 228 Ga. 16 , 183 S.E.2d 755 (1971); Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976).

OPINIONS OF THE ATTORNEY GENERAL

District attorney should not serve as special master in a condemnation case. 1970 Op. Att'y Gen. No. U70-39.

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Eminent Domain, §§ 293-295.

22-2-104. Appointment of special master - Form to be used in appointing special master.

Substantially, the following form should be used in appointing a special master: __________________, a competent attorney at law, residing in the ______________ Judicial Circuit, and of at least three years' experience in the practice of law, is hereby appointed a special master in and for the __________ Judicial Circuit, to discharge the duties of special master as provided in the condemnation law of this state. This appointment is ________________________________________ (either for general duties or for a particular case, as the case may be). This _____________ day of _____________, ____. ______________________________ Judge, Superior Court

(Ga. L. 1957, p. 387, § 7; Ga. L. 1999, p. 81, § 22.)

The 1999 amendment, effective April 5, 1999, part of an Act to revise, modernize, and correct the Code, deleted "19" from the date line in the form in this Code section.

22-2-105. Appointment of special master - Oath of special master.

The special master is required to take the following oath to be filed along with the order of his appointment in the office of the clerk of the superior court of the county in which the property or interest to be condemned is situated: I, ________________, do swear that I will faithfully, well, and truly perform the duties of special master under the condemnation law, according to law and to the best of my skill and ability. _________________________________________________________________ Sworn to and subscribed before me this __________ day of ________, ________. __________________________ (Title and authority of attesting officer)

(Ga. L. 1957, p. 387, § 8; Ga. L. 1984, p. 682, § 2; Ga. L. 1999, p. 81, § 22.)

The 1984 amendment, effective July 1, 1984, substituted "in which the property or interest to be condemned is situated" for "of his residence" following "of the county."

The 1999 amendment, effective April 5, 1999, part of an Act to revise, modernize, and correct the Code, deleted "19" from the date line in the form in this Code section.

22-2-106. Compensation of special master; allowance by judge of reasonable time for special master to inspect premises.

  1. The compensation of the special master shall be provided for by a proper order of the judge of the superior court; shall be included in and made a part of the judgment of the court condemning the property or any interest therein sought to be taken, such judgment to be based on the award of the special master and shall be paid by the condemning body. Such compensation shall be left to the discretion of the court and shall not exceed a reasonable hourly rate consistent with local standards unless otherwise agreed upon by the parties with consent of the court. The compensation of the special master shall be assessed as court costs and shall be paid prior to the filing of any appeal from the judgment of the court; provided, however, that if such compensation has not been determined and assessed at the time of filing any such appeal, the same shall be paid within 30 days from the date of assessment.
  2. The judge may allow the special master a reasonable period of time for personal inspection of the premises and may compensate the special master for his or her time spent inspecting the premises and for any actual expenses incurred by the special master in connection with the inspection, provided that the special master shall file an affidavit with the court showing his or her time spent in inspection and itemizing his or her expenses.

    (Ga. L. 1957, p. 387, § 9; Ga. L. 1975, p. 27, § 1; Ga. L. 1988, p. 408, § 2; Ga. L. 2006, p. 39, § 11/HB 1313.)

The 1988 amendment, effective July 1, 1988, added the last sentence of subsection (a).

The 2006 amendment, effective April 4, 2006, in subsection (a), in the first sentence, substituted "and" for a semicolon following "award of the special master", and deleted "; and shall not be less than $50.00 per day nor more than $250.00 per day for the time actually devoted to the hearing and consideration of the matter by the special master" at the end, and added the present second sentence; and in subsection (b), inserted "or her" following "his" in three places, and substituted "incurred by the special master" for "incurred by him" near the middle. For applicability, see Editor's notes.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

JUDICIAL DECISIONS

Compensation cannot exceed maximum statutory amount unless the actual time spent on one particular case is more than one normal working day period. City of Gainesville v. Smith, 121 Ga. App. 117 , 173 S.E.2d 225 (1970).

OPINIONS OF THE ATTORNEY GENERAL

District attorney should not serve as special master in a condemnation case. 1970 Op. Att'y Gen. No. U70-39 (decided under Ga. L. 1968, p. 992, as amended).

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Eminent Domain, § 305.

ALR. - Liability for costs in trial tribunal in eminent domain proceedings as affected by offer or tender by condemnor, 70 A.L.R.2d 804.

22-2-107. Service of process; award by special master and judgment of court conclusive as to right of condemnor to take or damage property or interest.

  1. Copies of the petition, together with the order of the court provided for in Code Section 22-2-102, shall in all cases be served upon the person in possession of the property or interest sought to be condemned and upon all persons who are known to have any rights in such property or interest.
  2. The return of service signed by the sheriff or his lawful deputy, or an affidavit of service executed by any citizen of this state, reciting that a copy of the petition and order was served upon the named condemnee in person or by leaving a copy at the place of his residence, shall be sufficient evidence as to the service of the named condemnee. It shall be the duty of the sheriff or citizen, as the case may be, to cause service to be made within three days from the date of the order of the judge on the petition.
  3. If any of the condemnees or other persons known to have any rights in the property or interest reside outside of the county, the judge shall order service to be made upon such party or parties. Such service shall be perfected by causing a copy of the petition and order to be served upon the party or parties by the sheriff or any lawful deputy of the county of the residence of the party or parties. In addition, service may be made by any citizen. The return of such sheriff or lawful deputy, or the affidavit of such citizen that the party or parties were served, either in person or by leaving a copy of the petition and order at the residence, shall be conclusive as to service.
  4. The sheriff or any lawful deputy of the county where the petition is filed shall serve nonresidents of this state:
    1. By posting a copy of the petition, together with the order of the judge thereon, on the bulletin board at the courthouse door of the county in which the property or interest sought to be condemned is located for not less than five days prior to the time of the hearing before the special master;
    2. By the insertion of a notice identifying the property or interest sought to be condemned, as well as the date and place of the hearing before the special master, in a newspaper having general circulation in the county wherein such property or interest is located, for one issue of said paper, the date of which shall be not less than four nor more than seven days prior to the hearing before the special master, and which is the same newspaper in which the sheriff's advertisements are carried; and
    3. Where the address of such nonresidents is known, by mailing to them by registered or certified mail or statutory overnight delivery a copy of the petition and order.
  5. If any of the persons entitled to service under this Code section are minors, or insane persons, or persons otherwise laboring under disabilities, the guardian of such persons shall be served. If the guardian resides outside of the county or is a nonresident, he or she shall be served as provided in subsections (c) and (d) of this Code section. If such minor or other person laboring under disabilities has no guardian, service shall be perfected by serving the disabled person personally or, in the event the disabled person lives outside of the county or is a nonresident, by serving the disabled person by the method provided in subsections (c) and (d) of this Code section for other persons who live outside of the county or are nonresidents, and by serving the judge of the probate court of the county wherein such property or interest is located, who shall stand in the place of and protect the rights of the disabled person or appoint a guardian ad litem for such person.
  6. In the event of unknown persons or unborn remaindermen who are likely to have any rights in the property or interest or the proceeds thereof, the judge of the probate court of the county wherein such property or interest is located shall be served with a copy of the petition and order; and it shall be his duty to stand in the place and protect the rights of such unknown parties or unborn remaindermen.
  7. The purpose of this article being to quicken and simplify the condemnation proceeding in all cases where the public good requires it and to provide for a condemnation in rem against the property or interest required to be taken or damaged and insofar as is reasonably possible to protect the rights of all parties to be heard at the time of the hearing before the special master, a substantial and reasonable effort to comply with the various modes of service provided for in this Code section shall be sufficient. Insofar as concerns the right of the condemning body to take or damage the property or any interest therein, upon the payment of the amount awarded by the special master into the registry of the court, the award of the special master and the judgment of the court condemning the property or interest to the use of the condemning body shall be conclusive.

    (Ga. L. 1957, p. 387, § 10; Ga. L. 1966, p. 388, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2004, p. 161, § 4.3.)

The 2000 amendment, effective July 1, 2000, and applicable with respect to notices delivered on or after July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in paragraph (3) of subsection (d).

The 2004 amendment, effective July 1, 2005, in subsection (e), deleted "or other personal representative" following "the guardian" in the first sentence, deleted "or personal representative" following "the guardian" and inserted "or she" between "he" and "shall" in the second sentence, and deleted "or personal representative" following "no guardian" in the third sentence.

Editor's notes. - Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2005, and all appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act."

Law reviews. - For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009).

JUDICIAL DECISIONS

Procedure satisfies due process. - Section 22-2-102 supplemented by this section and § 22-2-108 provides reasonable notice and opportunity for a condemnee to be heard and therefore satisfies the constitutional provisions as to due process. Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959).

Provisions for service on nonresidents formerly denied due process. - The portion of this section which purported to provide for posting, publishing, and mailing notices to known nonresident owners, denied due process by not naming anyone to post, publish, or mail the notice therein referred to. Ray v. Mayor of Athens, 221 Ga. 73 , 143 S.E.2d 386 (1965) (decided prior to amendment of this section by Ga. L. 1966, p. 388, § 1).

Service of petition upon nonresidents. - not subject to readjudication in the superior court. Being a final judgment it is appealable if at all directly to the appellate courts under the provisions of § 5-6-34 by bill of exceptions on the record made before the special master; if it is not so appealable there is a hiatus in the law which it is the duty of the Legislature and not the judiciary to supply. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Once the sanction of the court is received, by the judge of the superior court accepting the master's report and entering up a proper order and judgment condemning the described property, and once this act has been ratified by the condemnor upon the payment into the registry of the court of the amount provided for in the award that judgment is final and conclusive on the question of what property or interest therein has been condemned. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Fee simple title to condemned property vests in condemnor. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Taking is complete upon payment of award to court. - In a special master proceeding under this section and § 22-2-110 , the taking is complete upon the award of the special master and payment into court of the amount determined. Roberts v. Wise, 140 Ga. App. 1 , 230 S.E.2d 320 (1976).

There is no right to appeal from special master award to jury on nonvalue issues. Sweat v. Georgia Power Co., 235 Ga. 281 , 219 S.E.2d 384 (1975).

Appellate review of question of what property interest has been taken is not barred by the last sentence of this section. Harwell v. Georgia Power Co., 154 Ga. App. 142 , 267 S.E.2d 769 , aff'd, 246 Ga. 203 , 269 S.E.2d 464 (1980).

Court has discretion to vacate order where notice of condemnation insufficient. - The trial court has a discretion at the term at which the judgment disbursing funds is entered to vacate the order and reopen the case where it is shown to the court's satisfaction that the claimant had received no notice of the condemnation proceedings. Roberts v. Wise, 140 Ga. App. 1 , 230 S.E.2d 320 (1976).

Participation in hearing waived objection to defect in service. - Where the appellants participated in the special master hearing on the date that it was held, they could not complain about lack of service and notice of the hearing. Taylor v. Taylor County, 231 Ga. 209 , 200 S.E.2d 887 (1973); Black v. Fayette County, 268 Ga. 570 , 492 S.E.2d 517 (1997).

Cited in Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588 , 239 S.E.2d 387 (1977); Langley Land Co. v. Monroe County, 738 F. Supp. 1571 (M.D. Ga. 1990); Black v. Fayette County, 265 Ga. 175 , 453 S.E.2d 692 (1995); Ware v. Henry County Water & Sewerage Auth., 258 Ga. App. 778 , 575 S.E.2d 654 (2002).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 393, 394.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 196-204, 236, 242-249. 30 C.J.S., Eminent Domain, §§ 327-329. 72 C.J.S., Process, §§ 43 et seq., 73, 74.

ALR. - Condemnor's right, as against condemnee, to interest on excessive money deposited in court or paid to condemnee, 99 A.L.R.2d 886.

22-2-108. Powers and duties of special master generally.

The special master appointed pursuant to Code Section 22-2-103 shall serve in lieu of a board of assessors; provided, however, that if two assessors are selected pursuant to Code Section 22-2-108.1, the special master shall serve as the chairperson of the special master panel and shall decide all issues other than value issues which arise at the hearing provided for in Code Section 22-2-102. The special master's duties and authority, except as otherwise provided for in this article, shall be the same as provided by Code Sections 22-2-61 through 22-2-63. The special master shall hold the hearing provided for in Code Section 22-2-102 at the time and place provided by the order of the judge of the superior court and in compliance with the duties and authority conferred by this article. The special master shall not be authorized to continue or delay the hearing, except as otherwise provided by Code Section 22-2-108.1, relating to granting of a recess for selection of assessors, or by Code Section 9-10-150, relating to granting continuances by reason of membership in the General Assembly during sessions thereof, or except upon the written order of the judge of the superior court; and such a continuance shall be granted only for good cause shown to that judge. When it shall be necessary for the judge to grant a continuance, the continuance shall be for not more than five days from the date of the order granting the continuance.

(Ga. L. 1957, p. 387, § 11; Ga. L. 1973, p. 479, § 1; Ga. L. 1998, p. 1539, § 3.)

The 1998 amendment, effective July 1, 1998, in the first sentence, inserted "appointed pursuant to Code Section 22-2-103" and substituted the proviso for "and his"; added "The special master's" at the beginning of the present second sentence; and inserted "by Code Section 22-2-108.1, relating to granting of a recess for selection of assessors, or" in the fourth sentence.

Law reviews. - For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U.L. Rev. 115 (1998).

JUDICIAL DECISIONS

Procedure satisfies due process. - Section 22-2-102 supplemented by § 22-2-107 and this section provides reasonable notice and opportunity for a condemnee to be heard and therefore satisfies the constitutional provisions as to due process. Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959).

Condemnee bound by decision to use special master. - Having chosen and agreed to use the special master proceeding, a condemnee is bound by the applicable law regarding the special master's proceeding. Metropolitan Atlanta Rapid Transit Auth. v. Central Parking Sys., 167 Ga. App. 649 , 307 S.E.2d 93 (1983).

Duty of special master. - The primary duty of the special master is to ascertain the value of the property sought to be condemned and the consequential damages or benefits, if any, with the authority to hear and determine any legal objections raised by the parties. Leach v. Georgia Power Co., 228 Ga. 16 , 183 S.E.2d 755 (1971); Ward v. Housing Auth., 157 Ga. App. 825 , 278 S.E.2d 715 (1981).

The primary duty of the special master is to ascertain the total amount in money that will be equivalent to "just and adequate compensation" for the property and the interests in property being taken by the condemnor. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976).

Issues to be resolved by special master. - All issues as to the right of the condemnor to condemn, the interest to be condemned, the nature of the interest taken, and the effect of the condemnation upon the respective rights of the parties are to be resolved by the special master. State Hwy. Dep't v. Thomas, 115 Ga. App. 372 , 154 S.E.2d 812 (1967).

Legal objections raised by parties may include, for example, the right of the condemnor to condemn, the interest to be condemned, the nature of the interest taken and the effect of the condemnation upon the respective rights of the parties. Ward v. Housing Auth., 157 Ga. App. 825 , 278 S.E.2d 715 (1981).

Exceptions to findings of special master required for review. - Where legal objections or issues are raised before and passed upon by the special master, to obtain a review in the pending condemnation case exceptions must be taken to the orders of the special master. Leach v. Georgia Power Co., 228 Ga. 16 , 183 S.E.2d 755 (1975).

When legal objections are raised before and passed upon by the special master, to obtain review of these objections exceptions must be taken to the master's findings prior to the superior court's entry of an order and judgment condemning the property. Ward v. Housing Auth., 157 Ga. App. 825 , 278 S.E.2d 715 (1981).

When no exceptions are taken to master's finding and it is made judgment of court, it is final until set aside or reversed in a manner provided by law. State Hwy. Dep't v. Thomas, 115 Ga. App. 372 , 154 S.E.2d 812 (1967); Ward v. Housing Auth., 157 Ga. App. 825 , 278 S.E.2d 715 (1981).

Statutory construction where procedural provisions incomplete. - Where wording is taken from a prior statute, or where this article fails to be complete within itself, then reference to provisions for proceedings before assessors is permitted to fill in the void. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Condemnee is not required to litigate tort claim as part of condemnation proceeding where special master was not empowered to hear such claim. Georgia Power Co. v. Johnson, 155 Ga. App. 862 , 274 S.E.2d 17 (1980).

Continuance. - This Code section mandates that no continuance be granted in excess of five days and does not denominate one rule for condemnors and another rule for condemnees, so where the condemnor failed to abide by the clear language of the statutory method it elected to follow, and the record was clear that condemnees at no time acquiesced in or waived strict compliance with this Code section, the trial court erred by not declaring the hearing of the special master void for violation of this Code section. Wrege v. Cobb County, 186 Ga. App. 512 , 367 S.E.2d 817 , cert. denied, 186 Ga. App. 919 , 367 S.E.2d 817 (1988).

The language in this section restricting the duration of continuances benefits the condemning authority by expediting the condemnation process. Wrege v. Cobb County, 186 Ga. App. 512 , 367 S.E.2d 817 , cert. denied, 186 Ga. App. 919 , 367 S.E.2d 817 (1988).

Cited in Nodvin v. Georgia Power Co., 125 Ga. App. 821 , 189 S.E.2d 118 (1972); Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588 , 239 S.E.2d 387 (1977); Hendley v. Housing Auth., 160 Ga. App. 221 , 286 S.E.2d 463 (1981); Ga. Transmission Corp. v. Barron, 255 Ga. App. 645 , 566 S.E.2d 363 (2002).

OPINIONS OF THE ATTORNEY GENERAL

It is responsibility of special master to establish value of property condemned, and nothing more; his duty is to assess the value of the property taken or damaged, and also to assess the consequential damages and benefits to the property not taken. 1969 Op. Att'y Gen. No. 69-494.

Payment of city or county taxes is not proper element of damages in condemnation case. 1969 Op. Att'y Gen. No. 69-494.

Responsibility for payment of taxes on condemned property. - The payment of property taxes is a responsibility of the landowner only so long as he, in fact, owns the property. The property owner or condemnee would be responsible for payment of taxes up to the date of taking; after that time, the responsibility for the payment of these taxes would lie upon the condemning body, if in fact that body is an entity which would have the responsibility for payment of these taxes. 1969 Op. Att'y Gen. No. 69-494.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 151, 152. 27 Am. Jur. 2d, Eminent Domain, §§ 266-296, 310-320, 357-374, 419-442.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 104-185, 271-275. 30 C.J.S., Eminent Domain, §§ 276-279, 296-304.

ALR. - Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Power of successor or substituted master or referee to render decision or enter judgment on testimony heard by predecessor, 70 A.L.R.3d 1079.

22-2-108.1. Special master panel; selection; notice; powers and duties.

  1. At any time at least five calendar days before commencement of the hearing specified in the order of the judge of the superior court, the condemnee or any other person having a right or interest in the property may, by written notice served on the condemnor and all other parties to the proceeding, select an assessor to hear and decide value issues at the hearing. Within five days after receipt of such notice, the condemnor shall, by written notice served on the condemnee and all other parties to the proceeding, select an assessor to hear and decide value issues at the hearing. The provisions of Code Sections 22-2-40 and 22-2-41 shall apply to the selection of such assessors; provided, however, that the special master appointed pursuant to Code Section 22-2-103 shall serve as the third assessor, shall be compensated as provided for in Code Section 22-2-106, and shall continue to perform the duties set forth in Code Section 22-2-108. Notwithstanding the number of condemnees or any other persons having a right or interest in the property, only one assessor shall be selected on behalf of all such condemnees or interested parties.
  2. In the event that the notice selecting an assessor by the condemnee or other person having a right or interest in the property is not served on the condemnor more than five days before the time on which the hearing is to commence as specified in the order of the judge of the superior court, the special master shall convene the hearing at the time and place specified in the order; and if requested by the condemnor, the special master shall then recess the hearing to a date certain, but not more than five calendar days after such time, to allow the condemnor additional time to select an assessor.
  3. After the condemnee or other person having a right or interest in the property has selected an assessor and the condemnor has selected an assessor, the special master and the two assessors selected by the parties shall constitute the special master panel and, except as otherwise provided in this article, shall perform the duties provided by Code Sections 22-2-61 through 22-2-63 . A majority of the special master panel shall decide all value issues which arise at the hearing provided for in Code Section 22-2-102 and shall prepare and submit the award as provided in Code Section 22-2-110 . (Code 1981, § 22-2-108.1 , enacted by Ga. L. 1998, p. 1539, § 3.)

Effective date. - This Code section became effective July 1, 1998.

Law reviews. - For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U.L. Rev. 115 (1998).

22-2-109. Factors to be considered in determining or estimating just and adequate compensation; determination of date of taking; inclusion of date of approval of original location of highway in petition for condemnation; newspaper advertisement.

  1. In determining or estimating just and adequate compensation to be paid to the owner of any property or interest condemned for public road and street purposes, neither the special master nor the special master panel, in the event such a panel exists, nor the jury, in the event of an appeal to a jury, shall be restricted to the agricultural or productive qualities of the land; but inquiry shall be made as to all other legitimate purposes to which the land could be appropriated. The date of taking as contemplated in this Code section shall be the date of the filing of the condemnation proceedings for the acquisition of the property or interest.
  2. The condemning authority shall cause the petition for condemnation to set forth the date of the approval of the original location of the highway. It shall be the further duty of the condemning authority, within 30 days from the date of the original approval and designation of said location as a highway, to cause the location of said highway in said county to be advertised once each week for four consecutive weeks in the newspaper of the county in which the sheriff's advertisements are carried; and said advertisement shall designate the land lots or land districts of said county through which such highway will be located. Said advertisement shall further show the date of the said original location of such highway as hereinbefore provided for in this subsection. Said advertisement shall further state that a plat or map of the project showing the exact date of original location is on file at the office of the Department of Transportation, and that any interested party may obtain a copy of same by writing to the Department of Transportation (One Georgia Center, 600 West Peachtree NW, Atlanta, Georgia 30308) and paying a nominal cost therefor.
  3. In determining just and adequate compensation for property or interests taken or condemned for public road and street purposes, the award of the special master or the special master panel, in the event such a panel exists, or the verdict of the jury, in the event of an appeal, shall, in addition to fixing the value of the land actually taken and used for such purposes, take into consideration the prospective and consequential damages to the remaining property or interest from which the property or interest actually taken was cut off, which consequential damages result to such remaining property or interest because of the location of such public road or street upon the portion actually taken. In addition, the increase of the value of such remaining property or interest from the location of such public road or street shall be considered. Such consequential benefits, if any, may be offset against such consequential damages, if any; but in no event shall consequential benefits be offset against the value of the property or interest taken for such public improvement.

    (Ga. L. 1966, p. 320, § 2; Ga. L. 1998, p. 1539, § 4; Ga. L. 2011, p. 752, § 22/HB 142.)

The 1998 amendment, effective July 1, 1998, in subsection (a), inserted "nor the special master panel, in the event such a panel exists," in the middle of the first sentence; and inserted "or the special master panel, in the event such a panel exists," near the beginning of the first sentence in subsection (c).

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, substituted "(One Georgia Center, 600 West Peachtree NW, Atlanta, Georgia 30308)" for "(2 Capitol Square, Atlanta, Georgia 30334)" in the last sentence of subsection (b).

Cross references. - Provisions regarding condemnation of property for public road purposes, § 32-3-4 et seq.

Law reviews. - For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U.L. Rev. 115 (1998). For survey article on real property law, see 59 Mercer L. Rev. 371 (2007). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For comment on State Hwy. Dep't v. Lumpkin, 222 Ga. 727 , 152 S.E.2d 557 (1966), see 3 Ga. St. B.J. 483 (1967).

JUDICIAL DECISIONS

What is just and adequate compensation is justiciable question, and only the judiciary can lawfully determine that question. Calhoun v. State Hwy. Dep't, 223 Ga. 65 , 153 S.E.2d 418 (1967).

Applicability. - It was error to hold that the date of taking property to acquire an easement for electrical transmission and distribution lines was the date of filing of the original condemnation petition; because the property was not being condemned for public street and road purposes, the date of taking was not governed by O.C.G.A. § 22-2-109 , but by O.C.G.A. §§ 22-2-110 and 22-2-111 , and thus the date of taking was when the amount provided in the award was paid into the trial court's registry. Orr v. Ga. Transmission Corp., 281 Ga. 754 , 642 S.E.2d 809 (2007).

There are only two elements of damages to be considered in condemnation proceeding: first, the market value of the property actually taken; second, the consequential damage that will 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. Simon v. Department of Transp., 245 Ga. 478 , 265 S.E.2d 777 (1980).

Anything that actually enhances value of land must be considered in order to meet the constitutional demand that the owner be paid before the taking, adequate and just compensation. DOT v. Arnold, 154 Ga. App. 502 , 268 S.E.2d 775 (1980).

There are three recognized techniques for determining market value: replacement cost new less depreciation, income, and comparable sales. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Measure of consequential damages if any, to the property which the condemnee retains, is the market value of the remainder in its circumstances just prior to the time of the taking, as compared with its market value in its new circumstances just after the time of the taking. Simon v. Department of Transp., 245 Ga. 478 , 265 S.E.2d 777 (1980).

Compensable damage must differ in kind from damage to general public. - Damage suffered by the condemnee which is different from that suffered by the general public in degree only, and not in kind, is not compensable or recoverable. Dougherty County v. Snelling, 132 Ga. App. 540 , 208 S.E.2d 362 (1974), overruled on other grounds, Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976).

Land and its natural components are one subject matter and what is required is evidence of the fair market value of that one subject matter. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

The only relevant inquiry in an appeal from the amount awarded by the special master was the overall value of the property condemned pursuant to this Article, with the fact that the property contained "chewacla" soil being taken into account; the trial court did not err in excluding irrelevant testimony as to the separate value of the "chewacla" soil located on the property. Williams v. Mayor of Carrollton, 195 Ga. App. 590 , 394 S.E.2d 389 (1990).

Improvements on land are proper subjects for independent valuation in consideration of the just and adequate compensation for the total property taken. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

Existing zoning regulations can be pertinent in a condemnation proceeding. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

Attorneys' fees need not be included in the measure of just compensation under the Georgia Constitution. Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980), cert. denied, 450 U.S. 936, 101 S. Ct. 1403 , 67 L. Ed. 2 d 372 (1981).

Lost profits may be used as means of awarding just and adequate compensation because the income approach necessarily takes into account what future earnings would be were the property interest not extinguished. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Change in traffic pattern. - Adjoining owners of property or operators of businesses on property adjoining a street or highway have no vested interest in the traffic pattern which controlling authorities may provide for the public street from time to time. If they suffer damage when the pattern is changed it is a damage suffered by members of the general public owning property or operating businesses adjacent to a street or highway, and for which there can be no recovery. The damage is not peculiar to the condemnees. Dougherty County v. Snelling, 132 Ga. App. 540 , 208 S.E.2d 362 (1974), overruled on other grounds, Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976).

Property is "unique" where fair market value will not afford just compensation. - Since valuing property at its fair market value presupposes a willing buyer and a willing seller, properties are "unique" such that fair market value will not afford just and adequate compensation when they are not of a type generally bought or sold in the open market. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Whether or not property is unique is a jury question. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

"Unique" property is measured by variety of nonfair market methods of valuation, including the cost and income methods. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Recovery of business losses. - Business losses are recoverable as a separate item only if the property is "unique." DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

When a business belongs to the landowner, total destruction of the business at the location must be proven before business losses may be recovered as a separate element of compensation. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

When the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is not remote or speculative. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

Remaining term of lease determined. - Where a lease provided that, for four additional five-year terms, tenants had the option of extending the lease, although rent for the renewal periods was not agreed to, the trial court correctly held that the tenants had only a nine month's tenancy remaining on the date of taking because the 20-year renewal provision was unenforceable for a lack of certainty as to the amount of rent for that renewal period. Cann v. Metropolitan Atlanta Rapid Transit Auth., 196 Ga. App. 495 , 396 S.E.2d 515 (1990).

Enhancement or impairment of value and lost profits not part of market value. - The enhancement or impairment of value of the land, or the loss of profits resulting from the announcement of condemnation proceedings are no part of market value for the purposes of just and adequate compensation. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800 , 189 S.E.2d 114 (1972).

Loss of established business separate item from value of building. - The loss of an established business is a separate and distinct item from the amount which a condemnee is entitled under this chapter to recover as the actual value of his building. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800 , 189 S.E.2d 114 (1972).

Market value of property a jury question. - Market value of property taken by the Department of Transportation is a matter of opinion, and may be established by direct as well as circumstantial evidence; it is peculiarly a matter for the jury, and the jury is not absolutely bound even by uncontradicted testimony of experts, but may consider the nature of the property involved, together with any other fact or circumstance properly within the knowledge of the jury which tends to establish the value of the property, and may arrive at a different figure than that of the experts, higher or lower, where the verdict reached is not so disparate as to justify an inference of gross mistake or undue bias. DOT v. Delta Mach. Prods. Co., 157 Ga. App. 423 , 278 S.E.2d 73 (1981).

Jury consideration of actual value of land. - While there may be circumstances in which the market value of the total property and the actual value of the improvements plus the actual value of the land are not the same, in such event the jury may still consider the actual value of the land or interest therein appropriated. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

Pro rata valuation in partial taking not authorized. - Charge to jury which employed a pro rata method of assessing the value of a partial taking was erroneous; statutes which govern the manner of assessment and set out the factors considered in determining compensation do not express such a relational mode. Bland v. Bulloch County, 205 Ga. App. 317 , 422 S.E.2d 223 , cert. denied, 205 Ga. App. 899 , 422 S.E.2d 223 (1992).

Jury cannot consider value of property prior to time of taking. - Since the compensation to be paid for property condemned is to be determined by its value at the time of its actual taking, a jury cannot consider the value at a time prior to the actual time of taking. West v. City of Atlanta, 123 Ga. App. 255 , 180 S.E.2d 277 (1971).

Nor can jury determine date of taking for compensation purposes. - The jury is not free to determine on the evidence that some date prior to the initiation of condemnation proceedings but after the announcement of the intent to condemn is the date of taking for the purposes of just and adequate compensation. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800 , 189 S.E.2d 114 (1972).

Testimony of expert who examines property before and after taking. - When an expert witness testifies as to the value of property in a condemnation case, and the examination of the witness discloses that his examination of the property had been made both before and after the date of taking, this does not prevent his testimony from having probative value as to the date of taking where the witness testifies as to his familiarity with the property as of the date of taking. His entire testimony cannot be excluded. West v. City of Atlanta, 123 Ga. App. 255 , 180 S.E.2d 277 (1971).

It was not error to fail to charge on consequential benefits where, although two witnesses mentioned consequential benefits, there was no evidence as to such benefits from which the jury could reasonably estimate the amount. City of Alma v. Morris, 180 Ga. App. 420 , 349 S.E.2d 277 (1986).

Nonexpert opinion on value. - Where each of the nonexpert witnesses showed familiarity with the property in question, knowledge of sales in the vicinity, and consequently knowledge of land values in the community, the cross-examination revelation that there may have been a lack of understanding as to many factors involved in formally determining land value may have served to weaken and discredit the testimony but did not render it inadmissible or incompetent. City of Alma v. Morris, 180 Ga. App. 420 , 349 S.E.2d 277 (1986).

Condemnor's testimony, standing alone, held inadmissible on question of consequential damages. - Where a limited access highway is condemned by the State, which highway cuts off several acres from the remainder of the land of the condemnee leaving those several acres without any access thereto, testimony offered by the condemnor that with access there would be no damage to the isolated land, standing alone, is inadmissible and without probative value on the question of consequential damages to those several acres without access. State Hwy. Dep't v. Howard, 124 Ga. App. 76 , 183 S.E.2d 26 (1971).

Cited in Simmons v. Webster County, 225 Ga. App. 830 , 485 S.E.2d 501 (1997).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 150-156. 27 Am. Jur. 2d, Eminent Domain, §§ 266-296, 310-320, 357-374, 427-442.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 91.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 32-35, 110-185, 271-275.

ALR. - Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98 .

Measure of damages or compensation where property is taken to widen street, 64 A.L.R. 1513 .

Right of property owner to compensation for diversion of traffic by relocation or rerouting of highway, 118 A.L.R. 921 .

Deduction of benefits in determining compensation or damages in eminent domain, 145 A.L.R. 7 .

What physical construction amounts to a change of grade within statute relating to award of damages, 156 A.L.R. 416 .

Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property, 6 A.L.R.2d 1197.

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Elements and measure of compensation in eminent domain for temporary use and occupancy, 7 A.L.R.2d 1297.

Fire risk or hazard as element of damages in condemnation proceedings, 63 A.L.R.2d 313.

Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.

Changes in purchasing power of money as affecting compensation in eminent domain proceedings, 92 A.L.R.2d 772.

Eminent domain: restrictive covenant or right to enforcement thereof as compensable property right, 4 A.L.R.3d 1137.

Propriety and effect, in eminent domain proceedings, of argument or evidence as to source of funds to pay for property, 19 A.L.R.3d 694.

Eminent domain: admissibility, on issue of value of condemned real property, of rental value of other real property, 23 A.L.R.3d 724.

Award of, or pending proceedings for, compensation for property condemned, as precluding action for damages arising from prior trespasses upon it, 33 A.L.R.3d 1132.

Eminent domain: cost of substitute facilities as measure of compensation paid to state or municipality for condemnation of public property, 40 A.L.R.3d 143.

Good will or "going concern" value as element of lessee's compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding, 58 A.L.R.3d 581.

Eminent domain: condemnor's liability for costs of condemnee's expert witnesses, 68 A.L.R.3d 546.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Assemblage or plottage as factor affecting value in eminent domain proceedings, 8 A.L.R.4th 1202.

Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

Abutting owner's right to damages for limitation of access caused by traffic regulation, 15 A.L.R.5th 821.

Elements and measure of compensation in eminent domain proceeding for temporary taking of property, 49 A.L.R.6th 205.

22-2-110. Award of special master and special master panel - Time of filing; award to become part of record of proceedings; vesting of title in condemnor upon deposit of award into court; form of award; use in subsequent appeal.

  1. The award of the special master or the special master panel, in the event such a panel exists, shall be served in a manner consistent with Code Section 9-11-5 upon all the parties and filed with the clerk of the superior court of the county where the property or interest is situated within three days after the date on which such hearing is completed. The special master or the special master panel shall mail the award to the condemnor and any condemnees on the date of filing of the award and provide a certificate of service evidencing the mailing of such award.
  2. The award shall become a part of the record of the proceedings in said matter and shall condemn and vest title to the property or other interest in the condemning body upon the deposit by that body of the amount of the award into the registry of the court, subject to the demand of such condemnee or condemnees, according to their respective interests.
  3. The award shall be in the following form:
  4. In any case where there is an appeal from the award of the special master or the special master panel, in the event such a panel exists, to a jury in the superior court, such award shall not be competent evidence. Any such appeal shall be a de novo investigation, and such award shall be detached from the papers in the case before the same are delivered to the jury.

    (Ga. L. 1957, p. 387, § 12; Ga. L. 1984, p. 682, § 3; Ga. L. 1998, p. 1539, § 5; Ga. L. 2006, p. 39, § 12/HB 1313; Ga. L. 2016, p. 864, § 22/HB 737.)

"AWARD

The special master appointed and chosen by the court to hear evidence and give full consideration to all matters touching upon the value of the property or interest sought to be condemned, as shown by the description of the property or interest in the case of ________ (condemning body) versus ________ (acres of land or other described interest in said land) and ________ (condemnee), Civil action file no.____ in superior court, having first taken the oath as required by law of the special master, the same having been filed with the clerk of the Superior Court of ________ County, and the special master panel, in the event such a panel exists, having heard evidence under oath and given consideration to the value of such property or interest on the ______ day of ________, at ____:____ _.M., as provided for in the order of the court, do decide and recommend to the court as follows: (1) I/We find and award to ________, condemnee, the sum of $______, as the actual market value of the property or interest sought to be condemned; (2) I/We find consequential damages to the remaining property or interest in the amount of $______; (3) I/We find consequential benefits to the remaining property or interest in the amount of $______ (never to exceed the amount of the consequential damages); (4) I/We find and award to ________, condemnee, the sum of $______, as the value of any associated moving costs; (5) Balancing the consequential benefits against the consequential damages, I/we find and award to the condemnee in this case in the total sum of $______, and I/we respectfully recommend to the court that the said property or interest be condemned by a judgment in rem to the use of the condemnor upon the payment of the last stated sum into the registry of the court, subject to the demands of the condemnee. This ______ day of ________, ____. __________________ Special Master __________________ Assessor __________________ Assessor"

The 1984 amendment, effective July 1, 1984, deleted "which is the county of my residence," preceding "and having heard evidence" in subsection (c).

The 1998 amendment, effective July 1, 1998, in subsection (a), inserted "or the special master panel, in the event such a panel exists,", substituted "on which" for "of", and inserted "is completed" at the end; in subsection (c), deleted "OF SPECIAL MASTER" from the form heading, substituted "the" for "I, __________________, the", inserted "the special master panel, in the event such a panel exists,", substituted "I/We" for "I" throughout the form, and added the signature lines for assessors; and rewrote subsection (d).

The 2006 amendment, effective April 4, 2006, in subsection (a), inserted "served in a manner consistent with Code Section 9-11-5 upon all the parties and" in the first sentence, and added the second sentence; and in the form titled "AWARD" in subsection (c), added paragraph (4), and redesignated former paragraph (4) as paragraph (5). For applicability, see Editor's notes.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (c).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, in the undesignated language in the form in subsection (c), "evidence and" was substituted for "evidence,", "and" was deleted following "in superior court," and a comma was added following "Superior Court of ________ County".

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall apply to those condemnation proceedings filed on or after February 9, 2006, where title has not vested in the condemning authority unless constitutionally prohibited.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008).

JUDICIAL DECISIONS

Legislature has provided adequate method for determining compensation. - The Legislature, by enacting §§ 22-2-102 , 22-2-108 and 22-2-112 , has provided an adequate method for determining the just and adequate compensation of property sought to be condemned under this article and this section of the act in no wise limits the master to an arbitrary finding. Kellett v. Fulton County, 215 Ga. 551 , 111 S.E.2d 364 (1959).

This section provides notice as a matter of law to all of the parties and their counsel that the award will be filed within the required time and that an attempt to appeal the matter to a jury in the superior court coming more than 10 days after its filing, as provided by § 22-2-112 , comes too late. Wilson v. City of Waycross, 130 Ga. App. 253 , 203 S.E.2d 301 (1973).

Time of filing award. - Condemnation proceeding was not voided and nullified by the fact that special master's award was not filed with clerk of court within three days after date of hearing, since the requirement of speedy disposition to protect the property owner is directory rather than jurisdictional. Savage v. Thomaston-Upson County Office Bldg. Auth., 205 Ga. App. 634 , 422 S.E.2d 896 , cert. denied, 205 Ga. App. 901 , 422 S.E.2d 896 (1992).

There is no provision in this Code section which tolls the filing period for an appeal in the event that the special master fails to file the awards within three days of the hearing. Garner v. Georgia Transmission Corp., 235 Ga. App. 889 , 510 S.E.2d 624 (1999).

Date of taking. - It was error to hold that the date of taking property to acquire an easement for electrical transmission and distribution lines was the date of filing of the original condemnation petition; because the property was not being condemned for public street and road purposes, the date of taking was not governed by O.C.G.A. § 22-2-109 , but by O.C.G.A. §§ 22-2-110 and 22-2-111 , and thus the date of taking was when the amount provided in the award was paid into the trial court's registry. Orr v. Ga. Transmission Corp., 281 Ga. 754 , 642 S.E.2d 809 (2007).

No property taken until payment of award. - No property is taken under the special master procedure until the payment of the award into the registry of the court is made. Arnold v. State Hwy. Dep't, 116 Ga. App. 201 , 156 S.E.2d 469 (1967).

In a special master proceeding under § 22-2-107 and this section, the taking is complete upon the award of the special master and payment into court of the amount determined. Roberts v. Wise, 140 Ga. App. 1 , 230 S.E.2d 320 (1976).

Payment of award not condition precedent to condemnor's appeal. - A condemnor is not required to pay the award of the special master into the registry of the court within ten days after the filing of the award, or at the time of, or prior to the filing of the appeal as a condition precedent to its right of appeal. Arnold v. State Hwy. Dep't, 116 Ga. App. 201 , 156 S.E.2d 469 (1967).

Title vests upon entry of condemnation judgment. - Because title to an owner's property vested in a city upon the entry of a condemnation judgment and the payment of the award to the owner in accordance with O.C.G.A. §§ 22-2-110(b) and 22-2-111 , the city was without authority to unilaterally dismiss the condemnation action and demand return of the previously paid award. Gramm v. City of Stockbridge, 297 Ga. App. 165 , 676 S.E.2d 818 (2009).

Non-value issues are not subject to de novo review under subsection (d) upon filing an appeal to a jury. Styers v. Atlanta Gas Light Co., 263 Ga. 856 , 439 S.E.2d 640 (1994).

On appeal from a special master's award, the court was not required to conduct an evidentiary hearing on non-value issues because that would allow new evidence which was not before the special master or a repetition of evidence which should have been preserved by transcript. Simmons v. Webster County, 225 Ga. App. 830 , 485 S.E.2d 501 (1997), cert. denied, 522 U.S. 1110, 118 S. Ct. 1041 , 140 L. Ed. 2 d 106 (1998).

Testimony of special master. - While there is nothing in the statute barring a special master from testifying, obviously the admission of his testimony must be governed by the applicable rules of evidence. Garner v. Gwinnett County, 105 Ga. App. 714 , 125 S.E.2d 563 (1962).

Interest under the special master proceeding is calculated from the date of the award, i.e., the time of the "taking." Metropolitan Atlanta Rapid Transit Auth. v. Central Parking Sys., 167 Ga. App. 649 , 307 S.E.2d 93 (1983).

Denial of motion to dismiss held not appealable. - A denial of a motion to dismiss condemnation proceedings on the ground that their initiation was beyond the power of the condemning authority may not be appealed where the case is still pending and no certificate of immediate review was obtained from the trial judge. Norton Realty & Loan Co. v. Board of Educ., 123 Ga. App. 620 , 182 S.E.2d 185 (1971).

Cited in Georgia Power Co. v. Bray, 232 Ga. 558 , 207 S.E.2d 442 (1974); City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975); Sweat v. Georgia Power Co., 235 Ga. 281 , 219 S.E.2d 384 (1975); Metropolitan Atlanta Rapid Transit Auth. v. Central Parking Sys., 167 Ga. App. 649 , 307 S.E.2d 93 (1983); Wrege v. Cobb County, 186 Ga. App. 512 , 367 S.E.2d 817 (1988); Langley Land Co. v. Monroe County, 738 F. Supp. 1571 (M.D. Ga. 1990); Banks v. Georgia Power Co., 220 Ga. App. 84 , 469 S.E.2d 218 (1996); Threatt v. Forsyth County, 250 Ga. App. 838 , 552 S.E.2d 123 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Appeal costs. - Appellants contesting the award of a special master need not pay the advance court cost deposit set forth in §§ 9-15-4 and 15-6-77 if they have properly paid the required costs for filing the initial condemnation petition. 1985 Op. Att'y Gen. No. U85-17.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 130-132. 27 Am. Jur. 2d, Eminent Domain, § 470.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 191, 192, 195-205. 30 C.J.S., Eminent Domain, §§ 299-304, 327-329, 360-372, 449-452.

ALR. - Right of court to reduce or increase award in condemnation and confirm it as reduced or increased, 61 A.L.R. 194 .

Referee's failure to file report within time specified by statute, court order, or stipulation as terminating reference, 71 A.L.R.4th 889.

22-2-111. Award of special master or special master panel - Incorporation of award into judgment of court.

Upon the entry of the award of the special master or the special master panel, if such a panel exists, and the presentation of the award to the judge of the superior court, the judge shall enter a proper order and judgment of the court condemning the described property or other interest in rem to the use of the condemnor upon the condemnor's paying into the registry of the court the amount provided in the award.

(Ga. L. 1957, p. 387, § 13; Ga. L. 1998, p. 1539, § 6.)

The 1998 amendment, effective July 1, 1998, inserted "or the special master panel, if such a panel exists," near the beginning, and deleted "of the special master" following "award" at the end.

Law reviews. - For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015).

JUDICIAL DECISIONS

This section does not violate state constitutional prerequisite that just and adequate compensation shall first be paid before private property is taken for public use, since the method of determining what is just and adequate compensation is a matter of legislative discretion, and the method prescribed herein fully and adequately protects that constitutional right. Anthony v. State Hwy. Dep't, 215 Ga. 853 , 113 S.E.2d 768 (1960).

Time of taking is spelled out in this section. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

No property taken until payment of award. - No property is taken under the special master procedure until the payment of the award into the registry of the court is made. Arnold v. State Hwy. Dep't, 116 Ga. App. 201 , 156 S.E.2d 469 (1967).

It was error to hold that the date of taking property to acquire an easement for electrical transmission and distribution lines was the date of filing of the original condemnation petition; because the property was not being condemned for public street and road purposes, the date of taking was not governed by O.C.G.A. § 22-2-109 , but by O.C.G.A. §§ 22-2-110 and 22-2-111 , and thus the date of taking was when the amount provided in the award was paid into the trial court's registry. Orr v. Ga. Transmission Corp., 281 Ga. 754 , 642 S.E.2d 809 (2007).

Payment of award not condition precedent to condemnor's appeal. - A condemnor is not required to pay the award of the special master into the registry of the court within ten days after the filing of the award, or at the time of, or prior to the filing of the appeal as a condition precedent to its right of appeal. Arnold v. State Hwy. Dep't, 116 Ga. App. 201 , 156 S.E.2d 469 (1967).

Exceptions to special master's rulings on nonvalue issues must be made prior to judgment authorized by this section. Sweat v. Georgia Power Co., 235 Ga. 281 , 219 S.E.2d 384 (1975); Earth Mgt., Inc. v. Heard County, 248 Ga. 442 , 283 S.E.2d 455 (1981); Wisenbaker v. Lowndes County, 175 Ga. App. 825 , 335 S.E.2d 1 (1985).

Exceptions to amended award. - Section 22-2-112 does not set forth any exception to the ten-day period for appeal, and the right to file extended to exceptions taken to an amended award not substantively changing an original award. Stafford v. Bryan County Bd. of Educ., 267 Ga. 274 , 476 S.E.2d 727 (1996).

Amendments not allowed after entry of judgment. - Once a condemnation judgment has been entered vesting title in the condemnor, amendments increasing or decreasing the amount or quantum of property taken cannot be allowed. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976).

Upon payment of an award into the court and the entry of the judgment of condemnation, title to the property vested in the county under this section, and since an amendment to alter the quantum of the property taken is not permissible after title vests, the county could not correct its mistake that caused it to condemn the wrong property either by amendment or by dismissing its petition. Gatefield Corp. v. Gwinnett County, 234 Ga. App. 621 , 507 S.E.2d 164 (1998).

Title vests upon entry of condemnation judgment. - Because title to an owner's property vested in a city upon the entry of a condemnation judgment and the payment of the award to the owner in accordance with O.C.G.A. §§ 22-2-110(b) and 22-2-111 , the city was without authority to unilaterally dismiss the condemnation action and demand return of the previously paid award. Gramm v. City of Stockbridge, 297 Ga. App. 165 , 676 S.E.2d 818 (2009).

Cited in Wiggins v. City of Macon, 120 Ga. App. 197 , 169 S.E.2d 667 (1969); Taylor v. Taylor County, 231 Ga. 209 , 200 S.E.2d 887 (1973); City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975).

22-2-112. Award of special master - Appeal of award generally; condemnee's right to jury trial on issue of just and adequate compensation.

  1. If the condemnor or any condemnee is dissatisfied with the amount of the award, an appeal shall be filed in the superior court and such appeal shall be filed within ten calendar days from the service of the award, plus three additional calendar days for mailing of the award. At the term succeeding the filing of the appeal, it shall be the duty of the judge to cause an issue to be made and tried by a jury as to the value of the property or interest taken or the amount of damage done, with the same right to move for a new trial and file an appeal as in other cases at law. The entering of an appeal and the proceedings thereon shall not hinder or delay in any way the condemnor's work or the progress thereof.
  2. The condemnee shall have the right to a jury trial on the issue of just and adequate compensation before the superior court having jurisdiction over the property sought to be condemned during the next term of court following the vesting of title in the condemnor. This right to a jury trial at the next term of court may be waived by the condemnee.

    (Ga. L. 1957, p. 387, § 14; Ga. L. 1998, p. 1539, § 7; Ga. L. 2006, p. 39, § 13/HB 1313.)

The 1998 amendment, effective July 1, 1998, inserted "or she" near the beginning of the first sentence, and added the second sentence.

The 2006 amendment, effective April 4, 2006, designated the previously existing provisions of this Code section as subsection (a); in subsection (a), added the first sentence, and deleted the former first two sentences, which read: "In case any party is dissatisfied with the amount of the award, he or she may, within ten days after the award is filed, enter in writing an appeal from the award to the superior court of the county where the award is filed. The provisions of Code Section 22-2-84.1, relating to reasonable expenses incurred on appeal, shall apply to any appeal under this Code section."; and added subsection (b). For applicability, see Editor's notes.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall apply to those condemnation proceedings filed on or after February 9, 2006, where title has not vested in the condemning authority unless constitutionally prohibited.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015).

JUDICIAL DECISIONS

This section provides for appeal from award of master to superior court where the issue as to the value of the property shall be tried by a jury. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Appeal in superior court only method of correcting special master's errors. - The only method of correcting any errors the assessors or a special master may have made in the original hearing and award is not by recommittal to that body but by an appeal in the superior court, which begins again the process of adjudication. City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975); Wrege v. Cobb County, 186 Ga. App. 512 , 367 S.E.2d 817 , cert. denied, 186 Ga. App. 919 , 367 S.E.2d 817 (1988).

If an appeal is taken by any party to a jury pursuant to this section, the trial judge commits error in remanding the case to the special master. The trial judge should rule on all legal issues, either by pretrial order or during the course of the trial, in the jury case pending before him. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976); Walker v. Georgia Power Co., 177 Ga. App. 493 , 339 S.E.2d 728 (1986).

The trial judge erred, where he determined that he was not going to conduct the proceedings de novo but instead decided to review the decision of the special master on nonvalue issues as though occupying an appellate position in the proceedings, thereby addressing only whether there was any evidence to support the special master's findings of fact and whether there were any errors of law in the special master's conclusions of law. Wrege v. Cobb County, 186 Ga. App. 512 , 367 S.E.2d 817 , cert. denied, 186 Ga. App. 919 , 367 S.E.2d 817 (1988).

This section is copied from § 22-2-80 and consequently has the same meaning. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

This section and § 22-2-80 must be given the same meaning. Both provide that appeals must be in writing and filed in the superior court of the county where the award is filed and within ten days thereof. City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975).

Payment of award not prerequisite to filing appeal. - Payment of the amount of the award of the special master into the registry of the court is not a prerequisite to filing an appeal for a jury trial. Metropolitan Atlanta Rapid Transit Auth. v. Central Parking Sys., 167 Ga. App. 649 , 307 S.E.2d 93 (1983).

Ten-day period also applies to nonvalue issues. - In order to comply with due process requirements, the 10 days in which to file exception to value issues under this section applies to nonvalue issues as well. Sims v. City of Toccoa, 256 Ga. 368 , 349 S.E.2d 385 (1986).

Appeal to superior court not timely filed where condemnee fails to follow procedure for making objections known. - Where the condemnee fails to follow the procedure required by law in condemnation in rem proceedings before a special master in seeking to have his objections made known to the court and to the special master, the superior court may rule that the condemnee's appeal to the superior court from the award of the special master was not timely filed. Hendley v. Housing Auth., 160 Ga. App. 221 , 286 S.E.2d 463 (1981).

Award becomes final if appeal not filed within ten days. - If an appeal to a jury is desired it must be filed within ten days after the filing of the award or it becomes final. Hardy v. Georgia Power Co., 151 Ga. App. 805 , 261 S.E.2d 748 (1979).

No exception to ten-day period for appeal. - This Code section does not set forth any exception to the ten-day period, and the right to file an appeal extended to exceptions taken to an amended award not substantively changing an original award. Stafford v. Bryan County Bd. of Educ., 267 Ga. 274 , 476 S.E.2d 727 (1996).

Entry of judgment on award prior to expiration of ten-day period. - Because all conditions and limitations provided by the Special Master's Act must be strictly followed, a superior court's entry of judgment on an award prior to the expiration of the ten-day period is reversible error absent an acquiescence or waiver. Fowler v. City of Warm Springs, 238 Ga. App. 601 , 519 S.E.2d 703 (1999).

Section 5-3-20 does not extend time for filing notice of appeal specified in this section. City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975).

Appeal to superior court is de novo proceeding. - If an appeal is taken pursuant to this section to a jury in the superior court, the trial in the superior court is a de novo proceeding, and it is the duty of the trial judge, by pretrial order or during the course of the trial, to rule on all legal issues. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976).

An appeal by either party from the award of a special master pursuant to this section is a de novo proceeding. Accordingly, if the case is tried again and the jury reaches a verdict smaller than the prepaid special master's award, the payor would be entitled to a judgment against the payee for the difference. Chastain v. Fayette County, 221 Ga. App. 118 , 470 S.E.2d 513 (1996).

Sole question on appeal is amount of compensation. - The sole question to be passed upon by the assessors, or a jury in the superior court on appeal, is the amount of compensation to be paid. Whether the quantity of land sought to be taken is necessary and proper for the purpose for which it is sought is a question not involved in such a proceeding. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

When an appeal is taken from a special master's award to a jury in the superior court pursuant to this section, the only issue for decision by the jury is the value of the subject property taken. Taylor v. Taylor County, 231 Ga. 209 , 200 S.E.2d 887 (1973).

While all issues may be raised in an appeal from the special master's award, the question of value is the sole issue to be submitted to the jury, and its fact-finding powers are limited to those facts directly touching on value. Walker v. Georgia Power Co., 177 Ga. App. 493 , 339 S.E.2d 728 (1986).

What this section and § 22-2-114 make very clear is that the court, and not the jury on appeal, will decide the quantity of interest of each condemnee and will also decide the quality of such interest. Walker v. Georgia Power Co., 177 Ga. App. 493 , 339 S.E.2d 728 (1986).

Trial court properly denied condemnees' motion for jury trial "on all issues of law and fact" upon appeal from an award by a special master, where the sole jury question was the amount of the compensation award. Benton v. Georgia Marble Co., 258 Ga. 58 , 365 S.E.2d 413 (1988).

Exceptions to special master's rulings on issues of law. - If an appeal to a jury in the superior court is not taken by one of the parties pursuant to this section, then exceptions to the rulings on issues of law made by the special master must be timely filed and presented to the trial judge for decision. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976).

One who does not except to the findings of the special master or appeal from the judgment of condemnation cannot, on the usual appeal to a jury on the question of value, raise legal issues by way of counterclaim or motion. Roberts v. Wise, 140 Ga. App. 1 , 230 S.E.2d 320 (1976).

Special master's findings as to amount company was entitled to under condemnation proceeding were determinations of law; therefore, a jury trial under this section was an inappropriate method of appealing, and the company's failure to take exception to the findings acted as a waiver of its right to appeal. Big-Bin Dispos-All, Inc. v. City of Valdosta, 172 Ga. App. 746 , 324 S.E.2d 501 (1984).

The failure of a party to file exceptions to the master's award for determination by the superior court results in a waiver of the party's right to further litigate any nonvalue issues. Beck v. Cobb County, 180 Ga. App. 808 , 350 S.E.2d 818 (1986).

Since the condemnor never filed an exception to the special master's award concerning the requirement that it give the landowner advance notice of its entry onto the easement in non-emergency situations, and the superior court made the special master's award the judgment of the court, the trial court was correct when it determined that the notice provision was a viable portion of the condemnation judgment. Styers v. Atlanta Gas Light Co., 263 Ga. 856 , 439 S.E.2d 640 (1994).

Trial court properly refused to dismiss a landowner's appeal on grounds that it failed to express dissatisfaction with the compensation awarded by the special master, as it provided the utility with notice that the landowner was objecting to the valuation given on the property; moreover, in light of the interest that the utility acquired in the property, and the purposes for which it intended to use that property, consequential damages potentially represented a significant portion of the compensation the landowner could recover. Ga. Power Co. v. Stowers, 282 Ga. App. 695 , 639 S.E.2d 605 (2006).

Condemnation of a property owner's land by a city was upheld on appeal, as was the trial court's judgment entered upon a jury verdict in the amount of $63,361 for the property and an award of attorney fees to the city, because the property owner never challenged the valuation made by a special master and also removed the amount awarded from the registry, thereby estopping the owner from challenging the legality of the taking on appeal. Mayo v. City of Stockbridge, 285 Ga. App. 58 , 646 S.E.2d 79 (2007), cert. denied, No. S07C1279, 2007 Ga. LEXIS 707 (Ga. 2007).

Right to jury trial on appeal does not extend to nonvalue issues. - The right of the condemnees to appeal the award of the special master to a jury trial does not carry with it the right to have a jury trial on the other issues in the case. Leach v. Georgia Power Co., 228 Ga. 16 , 183 S.E.2d 755 (1971).

Trial court erred in jury instructions. - In a business's appeal of a special master's award of $5,000 for the loss of its business operation due to condemnation of the building it occupied and its challenge to a trial court judgment finding that it lacked a compensable business loss, that judgment was reversed because the trial court erred in its instruction to the jury on the uniqueness test by incorrectly stating that difficulty relocating the business in the same general area was not a test for uniqueness. Further, the trial court erred by instructing the jury not to consider evidence of the business's difficulty in relocating to a comparable site in the area. ABM Realty Co. v. Bd. of Regents, 296 Ga. App. 658 , 675 S.E.2d 549 (2009).

Finality of special master's judgment during pendency of appeal. - Where an appeal to a jury as to value is pending, the judgment of condemnation under the special master's condemnation procedure is not a final judgment subject to review in the absence of a certificate as provided for by § 5-6-34 . City of Atlanta v. Turner Adv. Co., 234 Ga. 1 , 214 S.E.2d 501 (1975).

Where property is condemned and the judgment provides that no compensation is to be paid by the condemnor, there is no question to be presented to a jury as to value, and such judgment is final and subject to review without a certificate. City of Atlanta v. Turner Adv. Co., 234 Ga. 1 , 214 S.E.2d 501 (1975).

Market value is generally measure of damages. - The general rule is that the measure of damages, excluding the question of consequential damages and benefits, is the market value of the property taken. State Hwy. Dep't v. Stewart, 104 Ga. App. 178 , 121 S.E.2d 278 (1961).

But just and adequate compensation does not necessarily restrict recovery to market value where, by reason of special factors, the pecuniary value of the property to the owner is for some reason not the same as the actual cash market value. State Hwy. Dep't v. Stewart, 104 Ga. App. 178 , 121 S.E.2d 278 (1961).

Market value defined. - The market value of property is what a person who does not have to sell is willing to take from a person who is willing to buy but does not have to buy. State Hwy. Dep't v. Stewart, 104 Ga. App. 178 , 121 S.E.2d 278 (1961).

Consideration of market value of land for any purpose. - In determining the value of the land the jury must consider the market value of the property for any purpose for which it is suitable or it is adapted. State Hwy. Dep't v. Stewart, 104 Ga. App. 178 , 121 S.E.2d 278 (1961).

Consequential damages resulting from rentals lost before actual taking. - After a judgment that a taking is complete, a condemnee may appeal to a jury under this section as to the consequential damages resulting from lost rentals during the period between the announcement of the intent to condemn and date for actual taking. Such an appeal is de novo as to the value of property taken or amount of damage done. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800 , 189 S.E.2d 114 (1972).

Appeal governed by rules applicable to ordinary suits. - The trial of an appeal from the award of the special master in the superior court, which is a de novo investigation, is a judicial proceeding governed by the rules applicable to ordinary suits in the jurisdiction. City of Gainesville v. Loggins, 116 Ga. App. 548 , 158 S.E.2d 287 (1967), rev'd on other grounds, 224 Ga. 114 , 160 S.E.2d 374 (1968).

Dismissal of appeal filed more than ten days after award. - Where, in a condemnation action, an appeal to a jury in superior court is filed more than ten days after the filing of the award of a special master, it is error for a trial court not to dismiss the appeal. Howell Enters., Inc. v. City of Atlanta, 123 Ga. App. 767 , 182 S.E.2d 331 (1971).

An appeal not filed within the prescribed ten-day period is not timely and the proper judgment is one of dismissal. City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975); Williams v. Macon-Bibb County Water & Sewerage Auth., 202 Ga. App. 549 , 414 S.E.2d 909 (1992).

Where property owner's appeal to jury was untimely because it was not filed within ten days of the filing of the special master's award, his earlier demand for jury trial, filed before a special master award existed, did not qualify as a timely appeal to jury, and inasmuch as no appeal to jury was filed after the award was made and within ten days after the award was filed, the county's motion to dismiss the appeal was granted. Gwinnett County v. Grant, 181 Ga. App. 304 , 352 S.E.2d 391 (1986).

The circumstances of a condemnation proceeding under the Special Master Act, O.C.G.A. § 22-2-112 , prior to the 2006 amendment to that statute, include the fact that neither the special master nor the court are obligated to serve the parties with the award, and as a result a party has a duty to exercise diligence in determining when the award was filed; in such a situation, due diligence requires more than relying solely on a third party to provide information that could be obtained directly from the court. Rutland v. Ga. Power Co., 286 Ga. App. 14 , 648 S.E.2d 436 (2007).

As written, O.C.G.A. § 22-2-112 sets forth no exceptions to the 10-day period to file an appeal from the date an award is filed with the superior court, and an appeal not filed within that 10-day period is not timely and the proper judgment is one of dismissal. Rutland v. Ga. Power Co., 286 Ga. App. 14 , 648 S.E.2d 436 (2007).

Payment of special master's award as condition precedent to appeal. - A condemnor is not required to pay the award of the special master into the registry of the court within ten days after the filing of the award, or at the time of, or prior to the filing of the appeal as a condition precedent to its right of appeal. Arnold v. State Hwy. Dep't, 116 Ga. App. 201 , 156 S.E.2d 469 (1967).

Payment of amount of verdict as condition precedent to appeal. - Under the constitutional mandate that private property cannot be taken or damaged for public use without first paying just and adequate compensation to the owner, the payment of the amount of a jury verdict in excess of the prior appraisal by assessors, or special master, is a condition precedent to a valid appeal from such verdict and the judgment based thereon. City of Gainesville v. Loggins, 224 Ga. 114 , 160 S.E.2d 374 (1968).

The payment of the amount of the jury verdict in excess of the prior appraisal by assessors, or special master, is a condition precedent to the condemnor seeking a second de novo jury trial. Paulk v. Georgia Power Co., 231 Ga. 721 , 204 S.E.2d 154 (1974).

Tender of award to condemnee not condition precedent to condemnor's appeal. - Where a proceeding in rem is brought to condemn property for a public use under the provisions of this article, tender of the amount awarded by the special master to the apparent or ostensible owner of such property is not a condition precedent to the condemnor's right to pay the award into the registry of the court and enter an appeal to a jury. Hunt v. State Hwy. Dep't, 101 Ga. App. 797 , 115 S.E.2d 384 (1960); Tillman v. State Hwy. Dep't, 101 Ga. App. 865 , 115 S.E.2d 459 (1960); Slocumb v. Housing Auth., 101 Ga. App. 765 , 115 S.E.2d 459 (1960); State Hwy. Dep't v. Taylor, 102 Ga. App. 15 , 115 S.E.2d 703 (1960); State Hwy. Dep't v. Farmers Gin Co., 102 Ga. App. 35 , 115 S.E.2d 760 (1960).

Entry of judgment where appeal results in lower award. - Where a special master makes an award to a condemnee, who subsequently is granted a jury trial on appeal which results in a lower award, the judgment should be entered even though the condemnor never appealed the award of the special master because an appeal by either party entitles both parties to a de novo determination of the issue. Smith v. Georgia Power Co., 131 Ga. App. 380 , 205 S.E.2d 916 (1974).

Refusal by clerk of superior court to pay over amount awarded to condemnee which had been paid to such clerk by the condemnor in connection with its appeal for a jury trial is not a proper ground for dismissal of such appeal because where the condemnor pays the amount of the award of the assessors into the registry of the court, the condemnor is not thereafter concerned with its distribution, and, further, such condemnor is not responsible for the clerk's actions. State Hwy. Dep't v. Taylor, 102 Ga. App. 15 , 115 S.E.2d 703 (1960).

Payment of award by delivery of check. - The delivery of a check, in the amount of condemnation award, to the clerk of the superior court is not payment of such amount into the registry of the court where sufficient funds to cover such check are not on deposit at the bank on which such check is drawn during the ten day period when an appeal may be filed. State Hwy. Dep't v. Farmers Gin Co., 102 Ga. App. 35 , 115 S.E.2d 760 (1960).

Where jury is unable to agree on whether condemnee is entitled to recover expenses of litigation, including attorney fees, the trial court is not authorized to grant the condemnee's motion for judgment notwithstanding the mistrial. DOT v. Glenn, 243 Ga. 21 , 252 S.E.2d 906 (1979).

Trial court serves as trier of fact on nonvalue issues. - There being no right to a jury trial on exceptions to the special master's rulings on nonvalue issues, the trial court sits as the trier of fact and its judgment will not be disturbed if there is any evidence in the record to sustain it. Metropolitan Atlanta Rapid Transit Auth. v. Central Parking Sys., 167 Ga. App. 649 , 307 S.E.2d 93 (1983).

Evidentiary hearing not required. - On appeal from a special master's award, the court was not required to conduct an evidentiary hearing on non-value issues because that would allow new evidence which was not before the special master or a repetition of evidence which should have been preserved by transcript. Simmons v. Webster County, 225 Ga. App. 830 , 485 S.E.2d 501 (1997), cert. denied, 522 U.S. 1110, 118 S. Ct. 1041 , 140 L. Ed. 2 d 106 (1998).

Cited in Georgia S. & Fla. Ry. v. City of Warner Robins, 107 Ga. App. 370 , 130 S.E.2d 151 (1963); Housing Auth. v. Baker, 119 Ga. App. 109 , 166 S.E.2d 437 (1969); Wiggins v. City of Macon, 120 Ga. App. 197 , 169 S.E.2d 667 (1969); Wilson v. City of Waycross, 130 Ga. App. 253 , 203 S.E.2d 301 (1973); Sweat v. Georgia Power Co., 235 Ga. 281 , 219 S.E.2d 384 (1975); Glynn County v. Victor, 143 Ga. App. 198 , 237 S.E.2d 701 (1977); Shoemaker v. Department of Transp., 240 Ga. 573 , 241 S.E.2d 820 (1978); DeKalb County v. Trustees, Decatur Lodge No. 1602, B.P.O. Elks, 145 Ga. App. 180 , 243 S.E.2d 284 (1978); Oglethorpe Power Corp. v. Seasholtz, 157 Ga. App. 723 , 278 S.E.2d 429 (1981); Turner v. City of Nashville, 167 Ga. App. 665 , 307 S.E.2d 74 (1983); Metropolitan Atlanta Rapid Transit Auth. v. Gould Investors Trust, 169 Ga. App. 303 , 312 S.E.2d 629 (1983); Stafford v. Bryan County Bd. of Educ., 219 Ga. App. 750 , 466 S.E.2d 637 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Appeal and Error, §§ 146, 188. 27 Am. Jur. 2d, Eminent Domain, §§ 448, 468-472.

C.J.S. - 30 C.J.S., Eminent Domain, §§ 281-291, 343-345.

ALR. - Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment, 92 A.L.R.2d 346.

22-2-113. Award of special master or special master panel - Effect of tender, payment, or acceptance of award on right of appeal; right of owners of separate and distinct parcels to file separate appeal; effect of discrepancy between award of special master and verdict of jury; issuance of execution upon award or judgment.

  1. The tender, payment, or acceptance of the amount of the award shall not prevent any party from prosecuting the appeal.
  2. Where separate and distinct parcels of property are condemned in the same proceeding, the owner of any separate and distinct property may file a separate appeal to a jury in the superior court.
  3. If the amount awarded by the special master or the special master panel, if such a panel exists, is less than that found by the verdict of the jury, the condemnor shall be bound to pay the sum so finally adjudged less the amount previously deposited as provided in Code Section 22-2-110 plus lawful interest on the difference from the date of such deposit, in order to retain the property.
  4. If the condemnor fails to pay the amount of the award or judgment within ten days after the same is filed or entered, then the clerk shall issue execution upon such award or judgment which may be levied upon any property of the condemnor.

    (Ga. L. 1957, p. 387, § 15; Ga. L. 1998, p. 1539, § 8.)

The 1998 amendment, effective July 1, 1998, in subsection (c), inserted "or the special master panel, if such a panel exists," near the beginning, and substituted "such deposit" for "the order of the special master" near the end.

Law reviews. - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).

JUDICIAL DECISIONS

Judgment authorized by this section is clearly in personam judgment. Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588 , 239 S.E.2d 387 (1977).

Condemnor cannot insist upon its right to take property and refuse to pay the amount awarded to the condemnee at the same time. State Hwy. Dep't v. Taylor, 102 Ga. App. 15 , 115 S.E.2d 703 (1960).

One cannot voluntarily accept money awarded for his property and still contest right to condemn, but such acceptance in no way precludes one from protesting the value amount of the award. Tingle v. Georgia Power Co., 150 Ga. App. 867 , 258 S.E.2d 668 (1979).

Despite the fact that subsection (a) states that the acceptance of the award "shall not prevent any party from prosecuting the appeal," this language is not applicable to appeals in which the condemnee challenges the right to condemn, as opposed to the amount of the award. Wrege v. Cobb County, 203 Ga. App. 241 , 416 S.E.2d 562 (1992).

Award becomes final if appeal not filed within ten days. - If an appeal to a jury is desired it must be filed within ten days after the filing of the award or it becomes final. Hardy v. Georgia Power Co., 151 Ga. App. 805 , 261 S.E.2d 748 (1979).

"Owner" intended to be distinguished from other condemnees. - It is obvious that the Legislature in using the word "owner" not only intended it to have its ordinary signification, but in doing so, also distinguished the owner from other condemnees. Citizens & S. Nat'l Bank v. Fulton County, 123 Ga. App. 323 , 180 S.E.2d 905 (1971).

Leaseholder is "owner" within the meaning of this section. Allen v. Hall County, 156 Ga. App. 629 , 275 S.E.2d 713 (1980).

Bank as lienholder is not "owner" within the meaning of the statute as to the money received by it under the order of the court and the agreement of the parties. Citizens & S. Nat'l Bank v. Fulton County, 123 Ga. App. 323 , 180 S.E.2d 905 (1971).

Applicability of section. - The provisions of subsection (a) were not applicable where the condemnees withdrew their original appeal with prejudice; further, the statutory language is not applicable to appeals in which the condemnee challenges the right to condemn as opposed to challenging the amount of the award. Fulton County v. Threatt, 210 Ga. App. 269 , 435 S.E.2d 672 (1993).

Judgment in condemnation action may be pleaded in bar of subsequent damage suit. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800 , 189 S.E.2d 114 (1972).

Computation of interest. - Where interest is computed on an amount which the condemnee must refund to the condemnor, interest is computed only from the date of the adjudication of principal amount. State Hwy. Dep't v. Rogers, 118 Ga. App. 626 , 165 S.E.2d 172 (1968).

In a condemnation proceeding, the trial court erred in failing to follow the mandates of O.C.G.A. § 22-2-113(c) which required the payment of interest from the date of the taking on the difference between the special master's award and the arbitrator's award. Threatt v. Forsyth County, 250 Ga. App. 838 , 552 S.E.2d 123 (2001).

Interest accrues at rate of 7 percent. - The 12 percent rate of § 7-4-12 applies only to judgments; any interest accruing under this section for that period of time following the award of the special master until the jury verdict and entry of a final judgment is to be at the legal interest rate established by § 7-4-2 , such rate being 7 percent per annum. City of Atlanta v. Wright, 159 Ga. App. 809 , 285 S.E.2d 250 (1981).

Payment of amount of verdict as condition precedent to appeal. - The payment of the amount of the jury verdict in excess of the prior appraisal by assessors, or special master, is a condition precedent to the condemnor seeking a second de novo jury trial. Georgia Power Co. v. Paulk, 131 Ga. App. 218 , 205 S.E.2d 484 (1974).

Tender of award to condemnee not condition precedent to condemnor's appeal. - Where a proceeding in rem is brought to condemn property for a public use under the provisions of this article, tender of the amount awarded by the special master to the apparent or ostensible owner of such property is not a condition precedent to the condemnor's right to pay the award into the registry of the court and enter an appeal to a jury. Hunt v. State Hwy. Dep't, 101 Ga. App. 797 , 115 S.E.2d 384 (1960); Tillman v. State Hwy. Dep't, 101 Ga. App. 865 , 115 S.E.2d 459 (1960); Slocumb v. Housing Auth., 101 Ga. App. 765 , 115 S.E.2d 459 (1960); State Hwy. Dep't v. Taylor, 102 Ga. App. 15 , 115 S.E.2d 703 (1960); State Hwy. Dep't v. Farmers Gin Co., 102 Ga. App. 35 , 115 S.E.2d 760 (1960).

Refusal by clerk of superior court to pay over amount awarded to condemnee, which had been paid to such clerk by the condemnor in connection with its appeal for a jury trial is not a proper ground for dismissal of such appeal because where the condemnor pays the amount of the award of the assessors into the registry of the court, the condemnor is not thereafter concerned with its distribution, and, further, such condemnor is not responsible for the clerk's actions. State Hwy. Dep't v. Taylor, 102 Ga. App. 15 , 115 S.E.2d 703 (1960).

Payment of award by delivery of check. - The delivery of a check, in the amount of condemnation award, to the clerk of the superior court is not payment of such amount into the registry of the court where sufficient funds to cover such check are not on deposit at the bank on which such check is drawn during the ten day period when an appeal may be filed. State Hwy. Dep't v. Farmers Gin Co., 102 Ga. App. 35 , 115 S.E.2d 760 (1960).

Cited in City of Atlanta v. Lunsford, 105 Ga. App. 247 , 124 S.E.2d 493 (1962); Golfland, Inc. v. Thomas, 107 Ga. App. 563 , 130 S.E.2d 757 (1963); City of Savannah Beach v. Thompson, 135 Ga. App. 63 , 217 S.E.2d 304 (1975); Threatt v. Forsyth County, 262 Ga. App. 186 , 585 S.E.2d 159 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Appeal and Error, § 258.

C.J.S. - 29A C.J.S., Eminent Domain, § 194. 30 C.J.S., Eminent Domain, § 332.

ALR. - Right under constitutional provision against taking or damaging, to recover in other than an eminent domain proceeding, for consequential damages to property no part of which is taken, 20 A.L.R. 516 .

Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98 .

Condemnor's right, as against condemnee, to interest on excessive money deposited in court or paid to condemnee, 99 A.L.R.2d 886.

22-2-114. Effect of deposit of award into court registry; conflicting claims as to deposit.

When the condemnor has paid into the registry of the court the amount provided for in the award of the special master or the special master panel, if such a panel exists, for the use and benefit of and subject to the demands of the condemnees, the effect of such payment into the registry of the court shall be the same as if paid to the condemnees directly, provided that the clerk shall pay out the money to the condemnees or their personal representatives upon proper proof submitted to him or her as to the quantity of their interests. Where there are conflicting claims, the clerk may require the conflicting parties to establish their claims before the court as is provided by law in other similar matters.

(Ga. L. 1957, p. 387, § 16; Ga. L. 1998, p. 1539, § 9.)

The 1998 amendment, effective July 1, 1998, inserted "or the special master panel, if such a panel exists" near the beginning of the first sentence, and inserted "or her" near the end of the first sentence.

JUDICIAL DECISIONS

This section requires payment into registry of court so that proper distribution can be made to all claimants of the fund. City of Gainesville v. Loggins, 224 Ga. 114 , 160 S.E.2d 374 (1968).

Court, not jury on appeal, will decide quantity of interest of each condemnee. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

What § 22-2-112 and this section make very clear is that the court, and not the jury on appeal, will decide the quantity of interest of each condemnee and will also decide the quality of such interest. Walker v. Georgia Power Co., 177 Ga. App. 493 , 339 S.E.2d 728 (1986).

Burden is on one claiming entitlement to part of proceeds to make his claim before the clerk. Roberts v. Wise, 140 Ga. App. 1 , 230 S.E.2d 320 (1976).

When one party holds condemnation proceeds in trust until conflicting claims can be resolved, this section may be applied in resolving those claims even though none of the condemnation fund is held in the registry of any court. Fourth Nat'l Bank v. Grant, 140 Ga. App. 78 , 230 S.E.2d 60 (1976).

It is not error to fail to submit to jury question of apportionment of condemnation proceeds under this section. Fourth Nat'l Bank v. Grant, 140 Ga. App. 78 , 230 S.E.2d 60 (1976).

Consent order to pay funds directly to bank as lienholder is nothing more than an agreement among those asserting rights in the property as to the priority of the bank. Citizens & S. Nat'l Bank v. Fulton County, 123 Ga. App. 323 , 180 S.E.2d 905 (1971).

Opening case after judgment based on claim to portion of proceeds. - One who fails to file a proper claim or make a timely protest to the judgment may not, after many terms of court have intervened, open up the case on the sole ground that he is entitled to a portion of the proceeds. Roberts v. Wise, 140 Ga. App. 1 , 230 S.E.2d 320 (1976).

Cited in Golfland, Inc. v. Thomas, 107 Ga. App. 563 , 130 S.E.2d 757 (1963); Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 , 227 S.E.2d 362 (1976); Glynn County v. Victor, 143 Ga. App. 198 , 237 S.E.2d 701 (1977); Metropolitan Atlanta Rapid Transit Auth. v. Gould Investors Trust, 169 Ga. App. 303 , 312 S.E.2d 629 (1983); Hart v. City of Hamilton, 173 Ga. App. 135 , 325 S.E.2d 791 (1984); Benton v. Patel, 257 Ga. 669 , 362 S.E.2d 217 (1987); Bankston v. City of Barnesville, 221 Ga. App. 446 , 471 S.E.2d 543 (1996); White v. Ringgold Tel. Co., 334 Ga. App. 325 , 779 S.E.2d 378 (2015).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 452.

C.J.S. - 29A C.J.S., Eminent Domain, § 205. 30 C.J.S., Eminent Domain, § 330.

ARTICLE 3 PROCEEDING BEFORE COURT

JUDICIAL DECISIONS

The purpose of this special condemnation statute is to afford a speedy and fair means whereby the public authorities may acquire a clear title to the lands sought for public purposes, and the landowner and all parties concerned may receive their just compensation therefor. Denham v. State Hwy. Bd., 52 Ga. App. 790 , 184 S.E. 631 (1936).

The purpose and the mandatory requirement of this article is for the condemnor to pay the amount of the award into the registry of the court so that it may be disbursed after a judgment has been taken against the property described in the petition and to those responding parties whom the judge, after hearing their respective claims thereto, finds to be justly entitled. Kreutz v. Housing Auth., 107 Ga. App. 315 , 130 S.E.2d 134 (1963).

In proceeding under this article, speedy action and progress is to be obtained so far as possible, and the statutes providing therefor must be strictly pursued. Denham v. State Hwy. Bd., 52 Ga. App. 790 , 184 S.E. 631 (1936).

Fact that State of Georgia is condemnor does not deprive condemnee of equal protection of law since he is authorized to make any valid defense in the condemnation proceeding itself. Russell v. Venable, 216 Ga. 137 , 115 S.E.2d 103 (1960).

This article is general law, and may be amended by another general law in accord with the state Constitution. Russell v. Venable, 216 Ga. 137 , 115 S.E.2d 103 (1960).

This article makes adequate provision for anyone claiming interest to assert equitable as well as legal rights to the property in the condemnation proceeding itself. Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

All legal and equitable issues relevant to the condemnation of a piece of land may be raised in a single proceeding under this article, unless principles of waiver or estoppel apply. DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695 , 182 S.E.2d 160 (1971).

All matters in opposition to petition to condemn property must be filed in condemnation proceeding, when the petition is filed under the provisions of this article. Howard v. Housing Auth., 220 Ga. 640 , 140 S.E.2d 880 (1965).

Prior to enactment of this article, there were no pleadings in condemnation proceeding, and no hearings provided for before the presiding judge prior to appeal; questions pertaining to the right to condemn, the constitutionality of the proceedings, and similar questions, could be made by the condemnee only in a separate bill in equity. Martin v. Fulton County, 213 Ga. 761 , 101 S.E.2d 716 (1958).

Constitutionality of statute may be questioned in separate equity proceeding. - Where the condemnee contends that the proceedings were brought under an unconstitutional statute, the validity of the statute may be called in question under a separate proceeding in equity. Martin v. Fulton County, 213 Ga. 761 , 101 S.E.2d 716 (1958).

Injunction available where remedy at law not adequate. - In condemnation proceedings under this article, a bill for injunction will lie where the remedy at law is not adequate and complete. Martin v. Fulton County, 213 Ga. 761 , 101 S.E.2d 716 (1958).

Equitable defenses and pleadings may be filed in condemnation proceedings. - While it has been held that a separate petition in equity for injunction may, in certain instances, be brought to restrain a condemnation proceeding filed under this chapter, it does not necessarily follow that equitable defenses and equitable pleadings may not be filed in such a condemnation proceeding, as in other actions at law. Martin v. Fulton County, 213 Ga. 761 , 101 S.E.2d 716 (1958).

Use and review of motions to dismiss. - Section 22-2-132 specifically provides the nature and character of the objections which may be urged before the presiding judge, which include "any other matters material to their respective rights"; matters pertaining to the rights of the condemnee might therefore be raised by general and special demurrers (now motions to dismiss) as in other cases, and an adverse ruling on a general demurrer (now motion to dismiss) can be reviewed by a direct bill of exceptions prior to any final judgment in the condemnation case. Martin v. Fulton County, 213 Ga. 761 , 101 S.E.2d 716 (1958).

This article does not provide for any method of review of interlocutory orders, and the only final judgment in this proceeding is the judgment of award. Stewart v. Board of Comm'rs, 66 Ga. App. 108 , 17 S.E.2d 203 (1941).

Condemnee cannot halt proceedings under this article at any stage before appointment of assessors and award by interposing a demurrer to the petition filed by the condemnor. Denham v. State Hwy. Bd., 52 Ga. App. 790 , 184 S.E. 631 (1936).

Section 5-3-8 applicable to appeals in condemnation proceedings. - The provisions of § 5-3-8 , requiring the consent of the opposite party before an appeal may be dismissed, are applicable to appeals in condemnation proceedings instituted under this article. State Hwy. Dep't v. Blalock, 98 Ga. App. 630 , 106 S.E.2d 552 (1958).

Issue of whether condemnee intends to dedicate land to public use is an issue that the trial judge should rule on in a pretrial order. DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695 , 182 S.E.2d 160 (1971).

Whether a condemnee dedicated a large portion of the land to public use is a mixed question of law and fact concerning the nature and amount of the land in issue, and its determination is for the trial judge. DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695 , 182 S.E.2d 160 (1971).

Where there is no express dedication for public use and the requisite intent must be implied, the acts relied upon to establish such dedication must be such as clearly showed a purpose on the part of the owner to abandon his own personal dominion over such property, and to devote the same to a definite public use. DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695 , 182 S.E.2d 160 (1971).

Where condemnor pays award of assessors into registry of court as provided by this article, the condemnor is not thereafter concerned with its distribution. Kreutz v. Housing Auth., 107 Ga. App. 315 , 130 S.E.2d 134 (1963).

Tender of award to owner not condition precedent to condemnor's appeal. - Where a proceeding in rem is brought to condemn property for a public use under the provisions of this article, tender of the amount awarded by the assessors to the apparent or ostensible owner of such property is not a condition precedent to the condemnor's right to pay the award into the registry of the court and enter an appeal to a jury. State Hwy. Dep't v. Farmers Gin Co., 216 Ga. 70 , 114 S.E.2d 537 , answer conformed to, 102 Ga. App. 35 , 115 S.E.2d 760 (1960).

Question of value is sole issue for jury on appeal. - While all issues may be raised in an appeal from the assessors' award, the question of value is the sole issue to be submitted to the jury, and its fact-finding powers are limited to those facts directly touching on value. DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695 , 182 S.E.2d 160 (1971).

Motion to dismiss appeal in condemnation proceedings under this article, which is regulated by Part 5, Art. I of this chapter, falls in a different category from an oral motion to strike pleadings, amendments, or answers, since the motion to dismiss the appeal raises issues of fact. Murray v. State Hwy. Dep't, 103 Ga. App. 517 , 120 S.E.2d 48 (1961).

Ruling on oral motion to strike motion to dismiss. - Trial court, in passing upon an oral motion to strike and dismiss the motion to dismiss an appeal in condemnation proceedings, can consider the evidence. Murray v. State Hwy. Dep't, 103 Ga. App. 517 , 120 S.E.2d 48 (1961).

OPINIONS OF THE ATTORNEY GENERAL

Date of taking is date of special master's or assessor's award. 1970 Op. Att'y Gen. No. 70-116.

State Highway Department (now Department of Transportation) has authority to condemn private property to construct sidewalks, curbs and gutters, and the department has authority to condemn private property for any and all necessary drainage ditches in connection with the construction and maintenance of any road or highway on the State Highway System. 1950-51 Op. Att'y Gen. p. 432.

RESEARCH REFERENCES

ALR. - Limitation applicable to action or proceeding by owner for compensation where property is taken in exercise of eminent domain without antecedent condemnation proceeding, 123 A.L.R. 676 .

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679 .

Condemnor's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

Right to open and close argument in trial of condemnation proceedings, 73 A.L.R.2d 613.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Condemned property's location in relation to proposed site of building complex or similar improvement as factor in fixing compensation, 51 A.L.R.3d 1050.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific cover, 26 A.L.R.4th 68.

22-2-130. Authority to petition superior court for judgment in rem; applicability to acquisition of public property.

  1. Whenever the government of the State of Georgia, the United States government, or any person having the privilege of exercising the right of eminent domain desires to take or damage private property in pursuance of any law so authorizing and finds or believes that the title of the apparent or presumptive owner of such property is defective, doubtful, incomplete, or in controversy or that there are or may be unknown persons or nonresidents who have or may have some claim or demand thereon or some actual or contingent interest or estate therein or that there are minors or persons under disability who are or may be interested therein or that there are taxes due or that should be paid thereon or concludes for any reason that it is desirable to have a judicial ascertainment of any question connected with the matter, such government or person may, through any authorized representative, petition the superior court of the county having jurisdiction for a judgment in rem against the property or interest, condemning the same to the use of the petitioner upon payment of just and adequate compensation therefor to the person or persons entitled to such payment.
  2. Notwithstanding the provisions of subsection (a) of this Code section, the provisions of this article shall also apply to the acquisition of public property or an interest therein by condemnation and the power of eminent domain. As used in this subsection, the term "public property" has the meaning provided for in Code Section 50-16-180.

    (Ga. L. 1914, p. 92, § 1; Code 1933, § 36-1104; Ga. L. 1937-38, Ex. Sess., p. 251, § 1; Ga. L. 1986, p. 1187, § 3.)

The 1986 amendment, effective April 7, 1986, designated the existing language as subsection (a) and added subsection (b).

JUDICIAL DECISIONS

Statute to be strictly construed. - In a statutory proceeding, where a person may be deprived of property, the statute must be strictly construed. Marist Soc'y v. City of Atlanta, 212 Ga. 115 , 90 S.E.2d 564 (1955).

Government property not "private property." - "Private property" does not include property owned by a government or a governmental entity. DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985).

The Department of Transportation may not condemn municipally owned property as the legislature has not clearly granted such authority or created a procedure therefore, and as such grant may not be implied from statutory provisions generally establishing a procedure for state agencies to condemn "private property." DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985).

This article authorizes condemnation of lands in fee simple. Marist Soc'y v. City of Atlanta, 212 Ga. 115 , 90 S.E.2d 564 (1955).

Effect of 1937-1938 amendment. - The 1937-1938 amendment to this section permits counties to condemn land by petition under the provisions of this article. Hoch v. Candler, 190 Ga. 390 , 9 S.E.2d 622 (1940).

Under the 1937-1938 amendment to this section, it is not necessary that the condemnation petition allege an unsuccessful effort to procure the land by contract or a failure to agree as to compensation. Hoch v. Candler, 190 Ga. 390 , 9 S.E.2d 622 (1940).

Prior negotiations to procure land from owner by contract are not necessary in a proceeding brought under this section. St. Clair v. State Hwy. Bd., 45 Ga. App. 488 , 165 S.E. 297 (1932).

Venue of in rem proceeding is in county in which land lies; but if the tract of land lies in two counties, such proceeding can be brought in the superior court of either county. Cook v. State Hwy. Bd., 162 Ga. 84 , 132 S.E. 902 (1926).

Persons claiming interest must establish amount and character of interest. - It is the duty of persons claiming an interest in property sought to be condemned to establish the amount and character of the interest claimed, and in such a proceeding all interests may be condemned, whether acquired by easement or by fee simple title to the property. Marist Soc'y v. City of Atlanta, 212 Ga. 115 , 90 S.E.2d 564 (1955).

Relief for owners of remainder interest not made parties to in rem condemnation proceeding. - Owners of remainder interest in property who were not made parties to an in rem proceeding to condemn that property for a public purpose could obtain monetary relief for the value of their remaindermant but could not set aside the judgment of condemnation awarding title to a public body. Nelson v. State, 254 Ga. 611 , 331 S.E.2d 554 (1985).

Court may enjoin condemnor from taking possession of and entering upon land until the issues made by the petition and defensive pleadings have been determined. Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

Condemnor cannot just abandon condemnation proceeding. Marist Soc'y v. City of Atlanta, 212 Ga. 115 , 90 S.E.2d 564 (1955).

Tender or payment of award is necessary before property may be taken or the work thereon commenced. Wilson v. State Hwy. Dep't, 85 Ga. App. 907 , 70 S.E.2d 535 (1952).

Where no motion for new trial is made and no exception taken to verdict and judgment following an appeal by the condemnor to the superior court, the land is condemned to public servitude subject only to payment of the amount of compensation fixed by the verdict and judgment. Harrison v. State Hwy. Dep't, 183 Ga. 290 , 188 S.E. 445 (1936).

To vacate and set aside judgment for value of property condemned, affirmative action seeking to set aside judgment in favor of condemnor, and payment of all expenses and damages accrued to the condemnee, are essential. Marist Soc'y v. City of Atlanta, 212 Ga. 115 , 90 S.E.2d 564 (1955).

County authorities may by petition condemn land for road which is about to become a part of the State Highway System. Hoch v. Candler, 190 Ga. 390 , 9 S.E.2d 622 (1940).

Condemnation of right of way across two tracts in one proceeding. - Under this section, the State can, in one proceeding, condemn a right of way over two tracts of land, one owned by one of the plaintiffs and the other owned by both plaintiffs, the proceeding being one in rem and not against the individuals. In such a proceeding, all persons interested will be allotted the damages to which they are respectively entitled. Cook v. State Hwy. Bd., 162 Ga. 84 , 132 S.E. 902 (1926).

The condemnor can, in one proceeding, condemn a right-of-way over several tracts of land owned by different persons. Marist Soc'y v. City of Atlanta, 212 Ga. 115 , 90 S.E.2d 564 (1955).

Separate equitable petition to enjoin condemnation under section not possible. - Plaintiff's claim, that defendants' intentions in planning to condemn his property without public need and without the funds to pay for the property presented a threat of irreparable harm to him in the future, was not cognizable under Georgia law because a separate equitable petition to enjoin a condemnation governed by the statute will not lie. Saffold v. Carter, 739 F. Supp. 1541 (S.D. Ga. 1990).

Insufficient description of condemned land in injunction petition. - Previous condemnation proceeding by petition of the county authorities was not subject to attack by the present injunction petition of the former landowner, as containing an insufficient description of the condemned land, where the description in the former proceeding identified the property as being described in plans on file in the office of the road commissioner of the county, and where the petition neither denied the existence of such plans and description nor alleged any fact showing their insufficiency. Hoch v. Candler, 190 Ga. 390 , 9 S.E.2d 622 (1940).

Where charter of municipality requires adoption of valid ordinance as prerequisite to condemnation of private property, and such requirement is not complied with prior to the condemnation proceedings, the action will be enjoined. Marist Soc'y v. City of Atlanta, 212 Ga. 115 , 90 S.E.2d 564 (1955).

Discretion of condemning body. - See Georgia Power Co. v. Bishop, 162 Ga. App. 122 , 290 S.E.2d 328 (1982), decided under Ga. L. 1957, p. 387.

Cited in State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204 , 199 S.E. 793 (1938); Stewart v. Board of Comm'rs, 66 Ga. App. 108 , 17 S.E.2d 203 (1941); United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); Patterson v. State Hwy. Dep't, 201 Ga. 860 , 41 S.E.2d 260 (1947); Cable v. State Hwy. Bd., 208 Ga. 593 , 68 S.E.2d 564 (1952); City of Atlanta v. Wilson, 209 Ga. 527 , 74 S.E.2d 455 (1953); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960); Cureton v. Cureton, 218 Ga. 88 , 126 S.E.2d 666 (1962); State Hwy. Dep't v. Robinson, 107 Ga. App. 854 , 131 S.E.2d 786 (1963); Varnadoe v. Housing Auth., 221 Ga. 467 , 145 S.E.2d 493 (1965).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 379, 380, 390, 391, 419-442.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, §§ 3, 59.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 196-205. 30 C.J.S., Eminent Domain, §§ 276-291.

ALR. - Condemnation by de facto corporation, 44 A.L.R. 542 .

Condemnation of public utility property for public utility purposes, 173 A.L.R. 1362 .

22-2-131. Contents of petition.

  1. The petition referred to in Code Section 22-2-130 shall set forth:
    1. The facts showing the right to condemn;
    2. The property or interest to be taken or damaged;
    3. The names and residences of the persons whose property or interests are to be taken or otherwise affected, so far as known;
    4. A description of any unknown persons or classes of unknown persons whose rights in the property or interest are to be affected;
    5. Such other facts as are necessary for a full understanding of the cause;
    6. A statement setting forth the necessity to condemn the private property and describing the public use for which the condemnor seeks the property; and
    7. A prayer for such judgment of condemnation as may be proper and desired.
  2. If any of the persons referred to in this Code section are minors or under disability, the fact shall be stated.

    (Ga. L. 1914, p. 92, § 2; Code 1933, § 36-1105; Ga. L. 2006, p. 39, § 14/HB 1313.)

The 2006 amendment, effective April 4, 2006, deleted "and" at the end of paragraph (a)(5); added paragraph (a)(6); and redesignated former paragraph (a)(6) as paragraph (a)(7). For applicability, see Editor's notes.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

JUDICIAL DECISIONS

It is not necessary that condemnation petition allege unsuccessful effort to procure land by contract or a failure to agree as to compensation. Hoch v. Candler, 190 Ga. 390 , 9 S.E.2d 622 (1940).

Where petition for condemnation as amended fully meets requirements of this section, the trial judge does not err in overruling a general demurrer (now motion to dismiss). Martin v. Fulton County, 213 Ga. 761 , 101 S.E.2d 716 (1958).

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 395, 396.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 3.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 250-261.

22-2-132. Order to appear, etc.; directions for notice and service thereof; attachment of process to petition; cause to proceed as in rem.

  1. Upon presentation of the petition, the presiding judge shall issue an order requiring the condemnor, the owner of the property or of any interest therein, and the representative of any owner to appear at a time and place named in the order and make known their objections if any, rights, or claims as to the value of the property or of their interest therein, and any other matters material to their respective rights; provided, however, that if the petition includes affidavits from known and located persons with a legal claim, stating that such condemnees do not oppose the condemnation, no hearing pursuant to this Code section shall be required.
  2. The day named in the order shall be as early as may be convenient but shall be no less than 20 days from the date of the petition, due regard being given to the necessities of notice.
  3. The order shall give appropriate directions for notice and the service thereof.
  4. It shall not be necessary to attach any other process to the petition except the order referred to in subsection (a) of this Code section, and the cause shall proceed as in rem.

    (Ga. L. 1914, p. 92, § 3; Code 1933, § 36-1106; Ga. L. 2006, p. 39, § 15/HB 1313.)

The 2006 amendment, effective April 4, 2006, in subsection (a), substituted "shall issue an order" for "may issue an order" near the beginning, inserted "if any" following "make known their objections" near the middle, and added "; provided, however, that if the petition includes affidavits from known and located persons with a legal claim, stating that such condemnees do not oppose the condemnation, no hearing pursuant to this Code section shall be required" at the end; and inserted "but shall be no less than 20 days from the date of the petition" in the middle of subsection (b). For applicability, see Editor's notes.

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

JUDICIAL DECISIONS

This section specifically provides nature and character of objections which may be urged before the presiding judge, which include "any other matters material to their respective rights"; matters pertaining to the rights of the condemnee might therefore be raised by general and special demurrers as in other cases, and an adverse ruling on a general demurrer can be reviewed by a direct bill of exceptions prior to any final judgment in the condemnation case. Martin v. Fulton County, 213 Ga. 761 , 101 S.E.2d 716 (1958).

Court may enjoin condemnor from taking possession of and entering upon land until the issues made by the petition and defensive pleadings have been determined. Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

Separate suit in equity to enjoin condemnation will not lie. - Since adequate and complete relief, equitable as well as legal, is afforded any person aggrieved by a condemnation proceeding brought under this article, a separate suit in equity will not lie to enjoin the condemnation proceeding or to contest the constitutionality of the Act under which condemnation is proceeding. Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

Cited in State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204 , 199 S.E. 793 (1938); United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 393.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 3.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 242-244. 72 C.J.S., Process, §§ 43 et seq., 73, 74.

22-2-133. Service of process - Generally.

All persons entitled to notice under the facts stated in the petition who are sui juris and within this state and whose residence is known shall be served by the sheriff with a copy of the petition and order as in other causes at law, unless such service is waived in writing. All other service shall be made in the method pointed out by Part 2 of Article 1 of Chapter 2 of this title, and all persons so served shall be deemed parties to the cause.

(Ga. L. 1914, p. 92, § 3; Code 1933, § 36-1107.)

JUDICIAL DECISIONS

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 391, 393, 394.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 3.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 245-249. 72 C.J.S., Process, §§ 43 et seq., 73, 74.

22-2-134. Service of process - Discretion of judge to cause additional notice or service to be given; notification of tax collector or tax commissioner.

In any cases where it seems to the presiding judge to be in the interest of justice and of more effective notice to cause additional notice or service to be given, it shall be within his discretion so to order. In such cases, the additional notice and service shall be made as ordered before the cause proceeds to final hearing. In cases where any taxes are alleged or supposed to be due or unpaid, the order shall direct that a separate notice to that effect be given the proper tax collector or tax commissioner.

(Ga. L. 1914, p. 92, § 3; Code 1933, § 36-1108.)

JUDICIAL DECISIONS

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960); Ware v. Henry County Water & Sewerage Auth., 258 Ga. App. 778 , 575 S.E.2d 654 (2002).

RESEARCH REFERENCES

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 3.

C.J.S. - 72 C.J.S., Process, §§ 43 et seq., 73, 74.

22-2-135. Appointment of assessors; discretion of judge to have issues tried in first instance by jury.

On the day named in the order made pursuant to Code Section 22-2-132, or at any other time to which the hearing may be continued, the court, having first passed on and adjudged all questions touching service and notice, shall, after hearing from all persons responding and desiring to be heard, make such order as to the appointment of assessors as shall conform most nearly to Article 1 of this chapter and give all interested persons equal rights in the selection thereof. If, by reason of conflicting interests or otherwise, such equality of right cannot be preserved, the judge shall himself make such order on the subject as shall secure a fair and impartial assessment or may in his discretion order the issues tried in the first instance by a jury. In any event, it shall be within the power of the court to hear the cause as speedily as may be consistent with justice and due process of law.

(Ga. L. 1914, p. 92, § 4; Code 1933, § 36-1109.)

JUDICIAL DECISIONS

Purpose of this special condemnation statute is to afford a speedy and fair means whereby the public authorities may acquire a clear title to the lands sought for public purposes, and the landowner and all parties concerned may receive their just compensation therefor. Denham v. State Hwy. Bd., 52 Ga. App. 790 , 184 S.E. 631 (1936).

It is within judge's discretion to determine disposition of preliminaries in the proceeding. Denham v. State Hwy. Bd., 52 Ga. App. 790 , 184 S.E. 631 (1936).

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); Patterson v. State Hwy. Dep't, 201 Ga. 860 , 41 S.E.2d 260 (1947); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960); State Hwy. Dep't v. Taylor, 102 Ga. App. 15 , 115 S.E.2d 703 (1960); Housing Auth. v. Mercer, 123 Ga. App. 38 , 179 S.E.2d 275 (1970); Fourth Nat'l Bank v. Grant, 140 Ga. App. 78 , 230 S.E.2d 60 (1976).

OPINIONS OF THE ATTORNEY GENERAL

Award must be tendered or paid before condemnor can enter upon land. - The full sum awarded in any condemnation proceeding must be tendered to the condemnee, or paid into court in the event the condemnee refuses to accept payment, before the condemnor may enter upon, occupy, or subject the land to its use. 1967 Op. Att'y Gen. No. 67-108.

Or before condemnor can appeal award. - It is not necessary for the agency bringing condemnation proceedings to place any appraised amount in trust prior to a court ruling; however, if assessors are appointed as provided in this section, the condemning authority cannot appeal the assessors' award without tender of the amount of the award to the condemnee or payment into the registry of the court. 1967 Op. Att'y Gen. No. 67-108.

Soil and water conservation district need not have funds on hand merely to institute condemnation proceeding. 1967 Op. Att'y Gen. No. 67-108.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 406-411.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 3.

C.J.S. - 30 C.J.S., Eminent Domain, §§ 276-304.

ALR. - Right of court to reduce or increase award in condemnation and confirm it as reduced or increased, 61 A.L.R. 194 .

Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

How to obtain jury trial in eminent domain: waiver, 12 A.L.R.3d 7.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

22-2-136. Appeal from assessors' award.

In case assessors are appointed, the same right of appeal shall lie from their award to a jury in the superior court, as is provided in Part 5 of Article 1 of this chapter and upon like terms and conditions in all respects as are therein provided.

(Ga. L. 1914, p. 92, § 4; Code 1933, § 36-1110.)

JUDICIAL DECISIONS

Appeal from condemnation award under this section is de novo investigation. State Hwy. Dep't v. Hester, 112 Ga. App. 51 , 143 S.E.2d 658 (1965).

Appeal from award of assessors to jury in superior court is not a suit within the provisions of § 44-12-21 . State Hwy. Dep't v. Noble, 220 Ga. 410 , 139 S.E.2d 318 (1964).

And such appeal does not require any process as is required in all suits at law. State Hwy. Dep't v. Noble, 220 Ga. 410 , 139 S.E.2d 318 (1964).

Requirement of payment of costs is for benefit of officers of court and not a condition precedent to the filing of an appeal. Hilderbrand v. Housing Auth., 109 Ga. App. 297 , 136 S.E.2d 24 (1964).

Clerk is not bound to receive appeal until costs have been paid to him, but if the clerk does receive an appeal without exacting the costs, the appeal is good, and the clerk becomes estopped from saying that the costs have not been paid to him - estopped as to all persons, at least, except the appellant. Hilderbrand v. Housing Auth., 109 Ga. App. 297 , 136 S.E.2d 24 (1964).

Failure of condemnor to pay costs and fees within ten days after judgment does not vitiate its appeal therefrom regardless of whether or not it is a political subdivision of the state. Hilderbrand v. Housing Auth., 109 Ga. App. 297 , 136 S.E.2d 24 (1964).

Waiver of right to have costs paid in advance. - Where a magistrate refuses to dismiss an appeal because costs have not been paid by the appellant, this amounts to a waiver of his right to have the costs paid in advance, and the appellee has no right to complain of the refusal to dismiss the appeal. Hilderbrand v. Housing Auth., 109 Ga. App. 297 , 136 S.E.2d 24 (1964).

Party's failure to sign appeal brought under this section is amendable defect and it is error for the court to strike the amendment tendered at the trial on appeal prior to the introduction of evidence and to dismiss the appeal. State Hwy. Dep't v. Hester, 112 Ga. App. 51 , 143 S.E.2d 658 (1965).

Tender of award to condemnee not condition precedent to condemnor's appeal. - Tender of the amount of the award of the assessors to the apparent or ostensible owner of the land involved is not a condition precedent to the condemnor's right to enter an appeal to a jury, when the amount of the award has been paid into the registry of the court within the time provided by law for the filing of an appeal. State Hwy. Dep't v. Taylor, 216 Ga. 90 , 115 S.E.2d 188 (1960).

Receipt of money does not preclude condemnee from attacking appeal. - Where the amount of the assessors' award is paid into the registry of the court, and thereafter paid to the condemnee, the condemnee is not precluded, by receiving the money, from attacking the validity of the appeal or moving for its dismissal. State Hwy. Dep't v. Taylor, 216 Ga. 90 , 115 S.E.2d 188 (1960).

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); Wilson v. State Hwy. Dep't, 85 Ga. App. 907 , 70 S.E.2d 535 (1952); Murray v. State Hwy. Dep't, 103 Ga. App. 517 , 120 S.E.2d 48 (1961); Alexander v. Rozetta, 110 Ga. App. 660 , 139 S.E.2d 451 (1964); Adams v. Housing Auth., 117 Ga. App. 646 , 161 S.E.2d 444 (1968); Hinton v. Georgia Power Co., 126 Ga. App. 416 , 190 S.E.2d 811 (1972); Georgia Dep't of Transp. v. Woodward, 254 Ga. 587 , 331 S.E.2d 557 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Appeal and Error, §§ 146, 188. 27 Am. Jur. 2d, Eminent Domain, §§ 468-472.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 240.

C.J.S. - 30 C.J.S., Eminent Domain, §§ 343-372.

ALR. - Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment, 92 A.L.R.2d 346.

22-2-137. Factors to be considered in determining or estimating just and adequate compensation; determination of date of taking; inclusion of date of approval of original location of highway in petition for condemnation; newspaper advertisement.

  1. In determining or estimating just and adequate compensation to be paid to the owner of any property or interest condemned for public road and street purposes, neither the board of assessors nor the jury, in the event of an appeal to a jury, shall be restricted to the agricultural or productive qualities of the land; but inquiry shall be made as to all other legitimate purposes to which the land could be appropriated. The date of taking as contemplated in this Code section shall be the date of the filing of the condemnation proceedings for the acquisition of the property or interest.
  2. The condemning authority shall cause the petition for condemnation to set forth the date of the approval of the original location of the highway. It shall be the further duty of the condemning authority, within 30 days from the date of the original approval and designation of said location as a highway, to cause the location of said highway in said county to be advertised once each week for four consecutive weeks in the newspaper of the county in which the sheriff's advertisements are carried; and said advertisement shall designate the land lots or land districts of said county through which such highway will be located. Said advertisement shall further show the date of the said original location of such highway as hereinbefore provided for in this subsection. Said advertisement shall further state that a plat or map of the project showing the exact date of original location is on file at the office of the Department of Transportation and that any interested party may obtain a copy of same by writing to the Department of Transportation (One Georgia Center, 600 West Peachtree NW, Atlanta, Georgia 30308) and paying a nominal cost therefor.
  3. In determining just and adequate compensation for property or interests taken or condemned for public road and street purposes, the award of the board of assessors or the verdict of the jury, in the event of an appeal, shall, in addition to fixing the value of the land actually taken and used for such purposes, take into consideration the prospective and consequential damages to the remaining property or interest from which the property or interest actually taken was cut off, which consequential damages result to such remaining property or interest because of the location of such public road or street upon the portion actually taken. In addition, the increase of the value of such remaining property or interest from the location of such public road or street shall be considered. Such consequential benefits, if any, may be offset against such consequential damages, if any; but in no event shall consequential benefits be offset against the value of the property or interest actually taken for such public improvement.

    (Code 1933, § 36-1117, enacted by Ga. L. 1966, p. 320, § 1; Ga. L. 2011, p. 752, § 22/HB 142.)

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, substituted "(One Georgia Center, 600 West Peachtree NW, Atlanta, Georgia 30308)" for "(2 Capitol Square, Atlanta, Georgia 30334)" in the last sentence of subsection (b).

Law reviews. - For comment on State Hwy. Dep't v. Lumpkin, 222 Ga. 727 , 152 S.E.2d 557 (1966), see 3 Ga. St. B.J. 483 (1967).

JUDICIAL DECISIONS

What is just and adequate compensation is justiciable question, and only the judiciary can lawfully determine that question. Calhoun v. State Hwy. Dep't, 223 Ga. 65 , 153 S.E.2d 418 (1967).

There are only two elements of damages to be considered in condemnation proceeding: first, the market value of the property actually taken; second, the consequential damage that will 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. Simon v. Department of Transp., 245 Ga. 478 , 265 S.E.2d 777 (1980).

Measure of damages is pecuniary loss sustained by owner. - The measure of damages for property taken by the right of eminent domain, being compensatory in its nature, is the pecuniary loss sustained by the owner, taking into consideration all relevant factors. Ordinarily this loss is represented by the fair market value of the property interest taken, but it may be the fair and reasonable value of the property taken if in fact the market value would not coincide with the actual value thereof. Polk v. Fulton County, 96 Ga. App. 733 , 101 S.E.2d 736 (1957).

Anything that actually enhances value of land must be considered in order to meet the constitutional demand that the owner be paid before the taking, adequate and just compensation. DOT v. Arnold, 154 Ga. App. 502 , 268 S.E.2d 775 (1980).

There are three recognized techniques for determining market value: replacement cost new less depreciation, income, and comparable sales. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Measure of consequential damages if any, to the property which the condemnee retains, is the market value of the remainder in its circumstances just prior to the time of the taking, as compared with its market value in its new circumstances just after the time of the taking. Simon v. Department of Transp., 245 Ga. 478 , 265 S.E.2d 777 (1980).

Land and its natural components are one subject matter and what is required is evidence of the fair market value of that one subject matter. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

Improvements on land are proper subjects for independent valuation in consideration of the just and adequate compensation for the total property taken. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

Existing zoning regulations can be pertinent in a condemnation proceeding. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

Attorneys' fees need not be included in the measure of just compensation under the Georgia Constitution. Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980), cert. denied, 450 U.S. 936, 101 S. Ct. 1403 , 67 L. Ed. 2 d 372 (1981).

Lost profits may be used as means of awarding just and adequate compensation because the income approach necessarily takes into account what future earnings would be were the property interest not extinguished. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Property is "unique" where fair market value will not afford just compensation. - Since valuing property at its fair market value presupposes a willing buyer and a willing seller, properties are "unique" such that fair market value will not afford just and adequate compensation when they are not of type generally bought or sold in the open market. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Private riverfront property is not unique. - Neither "privacy," which is inherent in ownership of all property, nor the fact that the condemned land was "riverfront" property, would authorize a charge on the condemned property having a value "peculiar" to the owner, or that the realty was "unique." Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 355 , 299 S.E.2d 592 (1983).

Whether or not property is unique is a jury question. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

"Unique" property is measured by variety of nonfair market methods of valuation, including the cost and income methods. Housing Auth. v. Southern Ry., 245 Ga. 229 , 264 S.E.2d 174 (1980).

Recovery of business losses. - Business losses are recoverable as a separate item only if the property is "unique." DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

When a business belongs to the landowner, total destruction of the business at the location must be proven before business losses may be recovered as a separate element of compensation. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

When the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is not remote or speculative. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314 , 265 S.E.2d 10 (1980).

Jury consideration of actual value of land. - While there may be circumstances in which the market value of the total property and the actual value of the improvements plus the actual value of the land are not the same, in such event the jury may still consider the actual value of the land or interest therein appropriated. DOT v. Brooks, 153 Ga. App. 386 , 265 S.E.2d 610 (1980).

Condemnor's testimony, standing alone, held inadmissible on question of consequential damages. - Where a limited access highway is condemned by the State, which highway cuts off several acres from the remainder of the land of the condemnee leaving those several acres without any access thereto, testimony offered by the condemnor that with access there would be no damage to the isolated land, standing alone, is inadmissible and without probative value on the question of consequential damages to those several acres without access. State Hwy. Dep't v. Howard, 124 Ga. App. 76 , 183 S.E.2d 26 (1971).

Value finding will not be set aside if within range of evidence. - A value finding in a condemnation case will not be set aside on appeal as inadequate or excessive where it is within the range of the evidence. Freedman v. Housing Auth., 108 Ga. App. 418 , 136 S.E.2d 544 (1963).

Expert testimony on impact of temporary easement and value. - In a condemnation action, an expert was properly allowed to testify that a temporary easement had not diminished the fair market value of the land. If evidence could be adduced that the taking of a temporary easement had diminished the fair market value, competent evidence could also be admitted to establish the fact that the temporary taking had not diminished the fair market value. Bulgin v. Ga. DOT, 292 Ga. App. 1 , 663 S.E.2d 730 (2008).

Changes in zoning regulations can be pertinent to value. - Where an owner's property would probably be rezoned, the trial court did not abuse its discretion in admitting the evidence thereof; however, testimony of the "highest and best use" of the property, by itself, was inadmissible when it involved a use precluded by the applicable zoning regulations in effect as of the date of taking. Unified Gov't v. Watson, 276 Ga. 276 , 577 S.E.2d 769 (2003).

Cited in City of Douglas v. Rigdon, 116 Ga. App. 306 , 157 S.E.2d 66 (1967).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 150-156. 27 Am. Jur. 2d, Eminent Domain, §§ 266-296, 310-320, 357-374, 427-442.

Market Value of Single-Family Residence - Market Comparison Appraisal, 5 POF2d 411.

Highest and Best Use of Property Taken Under Eminent Domain, 19 POF3d 613.

Probable Zoning Change as Bearing on Proof of Market Value in Eminent Domain Proceeding, 40 POF3d 395.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 91.

C.J.S. - 25A C.J.S., Damages, § 2.

ALR. - Measure of damages or compensation where property is taken to widen street, 64 A.L.R. 1513 .

Right of property owner to compensation for diversion of traffic by relocation or rerouting of highway, 118 A.L.R. 921 .

Deduction of benefits in determining compensation or damages in eminent domain, 145 A.L.R. 7 .

What physical construction amounts to a change of grade within statute relating to award of damages, 156 A.L.R. 416 .

Measure of compensation in eminent domain to be paid to state or municipality for taking of public highway or street, 160 A.L.R. 955 .

Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property, 6 A.L.R.2d 1197.

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Admissibility, in eminent domain proceedings, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Fire risk or hazard as element of damages in condemnation proceedings, 63 A.L.R.2d 313.

Changes in purchasing power of money as affecting compensation in eminent domain proceedings, 92 A.L.R.2d 772.

Unity of ownership necessary to allowance of severance damages in eminent domain, 95 A.L.R.2d 887.

Eminent domain: use or improvement of highway as establishing grade necessary to entitle abutting owner to compensation on subsequent change, 2 A.L.R.3d 985.

Eminent domain: restrictive covenant or right to enforcement thereof as compensable property right, 4 A.L.R.3d 1137.

Propriety and effect, in eminent domain proceedings, of argument or evidence as to source of funds to pay for property, 19 A.L.R.3d 694.

Eminent domain: admissibility, on issue of value of condemned real property, of rental value of other real property, 23 A.L.R.3d 724.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.

Condemned property's location in relation to proposed site of building complex or similar improvement as factor in fixing compensation, 51 A.L.R.3d 1050.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

Elements and measure of compensation in eminent domain proceeding for temporary taking of property, 49 A.L.R.6th 205.

22-2-138. Scope of award or verdict; molding of award or verdict; power of court to adjudge condemnation of title upon deposit of amount of award or verdict into court; disposition of award by court.

The award or verdict, as the case may be, shall have respect either to the entire and unencumbered fee or to any separate claim against or interest in the property, as the court may order. The award or verdict may be molded under the direction of the court so as to do complete justice and avoid confusion of interests. It shall be within the power of the court, upon payment of the award or verdict into the registry of the court, to adjudge a condemnation of the title to the property or interest therein and give such direction as to the disposition of the fund as shall be proper, according to the rights of the several respondents, and to cause such pleadings to be filed and such issues to be made as shall be appropriate for an ascertainment and determination of such rights.

(Ga. L. 1914, p. 92, § 5; Code 1933, § 36-1111.)

JUDICIAL DECISIONS

Purpose of this section is to require payment into the registry of the court so that a proper distribution can be made to all claimants of the fund. City of Gainesville v. Loggins, 224 Ga. 114 , 160 S.E.2d 374 (1968).

Trial judge is empowered to disburse condemnation proceeds to those justly entitled thereto, after hearing their respective claims. Hart v. City of Hamilton, 173 Ga. App. 135 , 325 S.E.2d 791 (1984).

Tender of award to owner not condition precedent to condemnor's appeal. - Tender of the amount of the award of the assessors to the apparent or ostensible owner of the land involved is not a condition precedent to the condemnor's right to enter an appeal to a jury, when the amount of the award has been paid into the registry of the court within the time provided by law for the filing of an appeal. State Hwy. Dep't v. Taylor, 216 Ga. 90 , 115 S.E.2d 188 (1960).

Where real estate has been damaged by abutting street improvement made by city, the owner cannot recover any damage for an alleged decrease in the market value of the property where, by reason of the enhanced value of the property by virtue of the improvement, the market value of the property has not been decreased. Stansell & Rape Bros. v. City of McDonough, 50 Ga. App. 234 , 177 S.E. 749 (1934).

Evidence of benefit to business from paving of street held admissible. - Competent evidence as to any improvement in or benefit to the business of certain property owners, conducted upon their city property, contiguous to and fronting on a street resulting from the paving of the street by the city, would be admissible in a suit brought by the property owners against the city for damage to their property, as tending to show that petitioners' property has been enhanced in value by reason of such public improvement, in order to set off the damages claimed by the petitioners. Stansell & Rape Bros. v. City of McDonough, 50 Ga. App. 234 , 177 S.E. 749 (1934).

The fact that other property, similarly situated, abutting upon the street paved, was also enhanced in value and received benefits from this improvement, is admissible to show in a general way that plaintiffs' property was also enhanced in value and received benefits from such paving. Stansell & Rape Bros. v. City of McDonough, 50 Ga. App. 234 , 177 S.E. 749 (1934).

Cited in State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204 , 199 S.E. 793 (1938); United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); State Hwy. Dep't v. Peavy, 204 Ga. 99 , 48 S.E.2d 726 (1948); Wilson v. State Hwy. Dep't, 85 Ga. App. 907 , 70 S.E.2d 535 (1952); Golfland, Inc. v. Thomas, 107 Ga. App. 563 , 130 S.E.2d 757 (1963); Alexander v. Rozetta, 110 Ga. App. 660 , 139 S.E.2d 451 (1964); Fourth Nat'l Bank v. Grant, 140 Ga. App. 78 , 230 S.E.2d 60 (1976); DOT v. Garrett, 154 Ga. App. 104 , 267 S.E.2d 643 (1980); McDaniel v. DOT, 200 Ga. App. 674 , 409 S.E.2d 552 (1991).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 446, 447, 452.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 91.

C.J.S. - 30 C.J.S., Eminent Domain, §§ 306-318.

ALR. - Quotient condemnation report or award by commissioners or the like, 39 A.L.R.2d 1208.

22-2-139. Right of interested persons to intervene; effect of subsequent proceedings on rights of condemnor.

Nothing in this article which refers to any ruling or order, or time for responding thereto, shall be held or construed to exclude any person by way of default from making known his rights or claims in the property or interest or in the fund arising therefrom. Any person making any such claim may file appropriate pleadings or intervention at any time before verdict or award, and such person shall be fully heard thereon. If any person after judgment of condemnation desires to come in and be heard on any such claim, he shall be allowed to do so. After condemnation is had and the fund paid into the registry of the court, the condemnor shall not be concerned with or affected by any subsequent proceedings unless upon appeal from the verdict or award as provided in Code Section 22-2-136.

(Ga. L. 1914, p. 92, § 7; Code 1933, § 36-1113.)

JUDICIAL DECISIONS

Court has power to enjoin condemnor from taking possession of and entering upon land until the issues made by the petition and defensive pleadings have been determined. Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

Citizens and taxpayers may seek to prevent illegal disposition of county property. - Citizens and taxpayers of a county have such an interest in county property as will authorize them to seek to prevent an illegal disposition thereof; and, in their efforts to do so, they may enlist the aid of equity to enjoin any such attempted disposition and to cancel deeds to and contracts of sale of county property by which such an illegal disposition of such property is sought to be effectuated. Timbs v. Straub, 216 Ga. 451 , 117 S.E.2d 462 (1960).

Separate action will not lie to enjoin condemnation. - Since adequate and complete relief, equitable as well as legal, is afforded any person aggrieved by a condemnation proceeding brought under this article which permits intervention by such person in the condemnation proceeding itself, a separate action in equity will not lie to enjoin the condemnation proceeding or to contest the constitutionality of the act under which condemnation is proceeding. Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

Where condemnor pays award of assessors into registry of court as provided by this article, the condemnor is not thereafter concerned with its distribution. Kruetz v. Housing Auth., 107 Ga. App. 315 , 130 S.E.2d 134 (1963).

Service of notice upon executor who is also owner. - Although the plaintiff, in his capacity as executor, should have been served with notice of condemnation proceeding, the fact that he was served as one of eight "owners" of the land with notice gave him knowledge of the proceeding, and he could have intervened as executor to protect the interests of the estate under the provision of this section, that anyone claiming any interests or rights in the subject property might intervene in the condemnation proceeding, he was in no way harmed by reason of the condemnor's failure to give him official notice in his capacity as executor. Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

Fears of nuisance held too speculative to permit injunction. - Fears of abutting landowners that land condemned for use as a football stadium would become a nuisance were too speculative to permit the enjoining of the condemnation. Herren v. Board of Educ., 219 Ga. 431 , 134 S.E.2d 6 (1963).

City did make its interest known to the court where it filed a motion for a rehearing on the award contending the city did not receive the requisite notice of the motion to disburse the condemnation award, where the newly discovered deeds showed the city had an interest in the property, and where the award and the motion prayed for an equitable division of the proceeds. Hart v. City of Hamilton, 173 Ga. App. 135 , 325 S.E.2d 791 (1984).

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); Wilson v. State Hwy. Dep't, 85 Ga. App. 907 , 70 S.E.2d 535 (1952); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960); State Hwy. Dep't v. Taylor, 216 Ga. 90 , 115 S.E.2d 188 (1960); Fourth Nat'l Bank v. Grant, 140 Ga. App. 78 , 230 S.E.2d 60 (1976); Bankston v. City of Barnesville, 221 Ga. App. 446 , 471 S.E.2d 543 (1996).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 392, 449-452.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 240.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 205, 237.

ALR. - Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

22-2-140. Notification of court by tax collector or tax commissioner of taxes due on property or interest; actions by court to discharge lien.

It shall be the duty of any tax collector or tax commissioner notified as required in Code Section 22-2-134 to make known to the court in writing the taxes due on the property or interest; and the court shall give such direction as will satisfy the tax liability and discharge the lien thereon.

(Ga. L. 1914, p. 92, § 8; Code 1933, § 36-1114.)

JUDICIAL DECISIONS

Cited in United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960).

RESEARCH REFERENCES

ALR. - Rights in respect of real-estate taxes where property is taken in eminent domain, 45 A.L.R.2d 522.

22-2-141. Filing and recording of award, decree, and description of condemned property or interest or copies thereof; payment of fees to clerk of superior court.

When the condemnation is fully completed, the award, whether made by assessors or by the verdict of a jury, together with the decree of the court based thereon and a full and complete description of the property or interest condemned or duly certified copies of such award, decree, and description, shall be filed and recorded in the records of deeds in the office of the clerk of the superior court of the county where the land so condemned lies. If the land lies in more than one county, such filing and recording shall be made in each county in which the land lies. The clerk shall be entitled to the same fees for such filing and recording as are allowed by law for the filing and recording of deeds, said fees to be paid by the party in whose favor said condemnation is had.

(Ga. L. 1919, p. 231, § 1; Code 1933, § 36-1116.)

Cross references. - Duty of clerk of superior court to maintain record of deeds, § 15-6-61 .

JUDICIAL DECISIONS

Cited in DOT v. Garrett, 154 Ga. App. 104 , 267 S.E.2d 643 (1980).

RESEARCH REFERENCES

ALR. - Liability for costs in trial tribunal in eminent domain proceedings as affected by offer or tender by condemnor, 70 A.L.R.2d 804.

22-2-142. Intent of article regarding effect on other methods of condemnation.

This article is intended to be supplementary to and cumulative of Articles 1 and 2 of this chapter in cases in which the State of Georgia, the United States, or any person having the privilege of exercising the right of eminent domain is concerned. This article is also intended to make simpler and more effective the method of condemnation in those cases where conflicting interests or doubtful questions render a judicial supervision of the procedure desirable. In all particulars not otherwise specially provided for in this article, the court shall conform its procedure as nearly as possible to Articles 1 and 2 of this chapter, and the same shall remain in force.

(Ga. L. 1914, p. 92, § 9; Code 1933, § 36-1115; Ga. L. 1937-38, Ex. Sess., p. 251, § 1.)

JUDICIAL DECISIONS

Cited in State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204 , 199 S.E. 793 (1938); United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); Wilson v. State Hwy. Dep't, 85 Ga. App. 907 , 70 S.E.2d 535 (1952); State Hwy. Dep't v. Hendrix, 215 Ga. 821 , 113 S.E.2d 761 (1960); DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695 , 182 S.E.2d 160 (1971).

RESEARCH REFERENCES

ALR. - Condemnation by de facto corporation, 44 A.L.R. 542 .

CHAPTER 3 EXERCISE OF POWER OF EMINENT DOMAIN FOR SPECIAL PURPOSES

Construction, Maintenance, etc., of

Telegraph and Telephone Lines

Along Railroad Rights of Way.

Construction and Operation of Electric

Power Plants.

G ENERAL PROVISIONS .

A CQUISITION OF RIGHT TO FLOOD ROADS AND HIGHWAYS .

Construction and Operation of Waterworks and Sanitary Sewage Systems.

Construction and Operation of Petroleum Pipelines.

Natural or Artificial Gas.

Construction, Operation, etc., of Water-

shed Projects, Flood-Control Projects,

etc., by Counties.

Construction of Lighthouses, Beacons, etc., by United States Government.

Ownership or Operation of Utility Systems.

Electric Transmission Lines.

Cross references. - Right of State Transportation Board to exercise right of eminent domain to acquire sites for airports, landing fields, and air navigation facilities, § 6-3-1 .

Power of municipal and county housing authorities to exercise power of eminent domain generally, § 8-3-31 .

Exercise of power of eminent domain for public school purposes, § 20-2-521 .

Authority of board of regents to exercise power of eminent domain, § 20-3-58 .

Authority of Department of Transportation to exercise power of eminent domain, § 32-2-2(a)(8).

Exercise of power of eminent domain for public road purposes, § 32-3-1 et seq.

ARTICLE 1 CONSTRUCTION, MAINTENANCE, ETC., OF TELEGRAPH AND TELEPHONE LINES ALONG RAILROAD RIGHTS OF WAY

Cross references. - Similar provisions regarding exercise of power of eminent domain for purposes of constructing and operating telephone and telegraph lines along public highways or railroad rights of way, § 46-5-1 .

JUDICIAL DECISIONS

This procedure affords due process of law to the railroad companies whose property is sought to be condemned. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554 , 42 S.E. 1 (1902); Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420 , 75 S.E. 471 , 42 L.R.A. (n.s.) 225 (1912).

The necessity for taking private property for public use is a question for legislative determination, and the provisions of this article relating to such taking are not, because they fail to provide for a special tribunal to pass upon such necessity, violative of the constitutional prohibition against taking the property without due process of law. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554 , 42 S.E. 1 (1902).

Failure to provide for appeal does not render statute unconstitutional. - Although a statute authorizing exercise of eminent domain may not provide for appeal from the award of the assessors, it is not, for this reason, unconstitutional. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 112 Ga. 941 , 38 S.E. 353 (1901).

Party with right to condemn has large discretion in selection of particular property to be condemned; therefore, in the absence of bad faith, the determination by the condemnor of reasonable necessity for acquiring the condemnee's land cannot be disturbed by a court on appeal. Harwell v. Georgia Power Co., 154 Ga. App. 142 , 267 S.E.2d 769 , aff'd, 246 Ga. 203 , 269 S.E.2d 464 (1980).

Telegraph company does not acquire fee, but only easement in right of way of a railway company condemned for the purpose of constructing a telegraph line; the easement embraces land actually occupied by poles and fixtures for guy wires, the right to stretch wires on poles, and to enter upon right of way to construct and repair telegraph line. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

Proposed telegraph line must produce no material interference with railroad operation. - A telegraph company may condemn a right of way on and along the right of way of a railroad company, when the proposed line of telegraph will be so constructed as to produce no material interference with the railroad company's free exercise of its franchise or with the actual operation of the railroad. Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420 , 75 S.E. 471 , 42 L.R.A. (n.s.) 225 (1912).

This article does not contemplate that telegraph company can arbitrarily condemn both sides of railroad track for the construction of lines on both sides of the track, when the necessary wires could be strung upon poles on one side of the track. Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420 , 75 S.E. 471 , 42 L.R.A. (n.s.) 225 (1912).

Elements to be considered in determination of damages. - See Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904); Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420 , 75 S.E. 471 , 42 L.R.A. (n.s.) 225 (1912).

Measure of damages in condemnation case under this article is value of land actually taken, and the extent to which the value and use of the right of way by the railway company is diminished by its use by the telegraph company. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

Value of right of way for other uses cannot be considered. - In arriving at the value of the land actually appropriated, the general salable value of the right of way for other uses than that to which it is applied by the railway company cannot be considered; the appropriation to public use amounts to a withdrawal of the right of way from any use except that which is necessary or ancillary to the operation of the railroad. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

Peculiar advantages of right of way not proper element of damages. - That the right of way may possess peculiar advantages and benefits to the telegraph company in the construction and maintenance of its line is not a proper element in the estimate of damages. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

Appeal from assessors' award under § 22-2-80 is permitted in a proceeding under this article. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

Amount of compensation is issue of fact for jury on appeal. - On appeal from the award of the assessors in a condemnation proceeding, the issue of fact for the jury is the amount of compensation to be paid for the property taken or damaged for public purposes. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

Telegraph company may begin construction pending appeal after depositing award. - A telegraph company which has proceeded to condemn a sufficiency of the right of way of railway company for purpose of erecting a telegraph line may, pending an appeal from the award of the assessors, lawfully proceed to construct its line on the right of way after it has deposited the amount of the award in the office of the clerk of the superior court of the county where such proceedings were had. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554 , 42 S.E. 1 (1902).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 20, 58, 98, 99, 102, 126, 138, 185, 214. 27 Am. Jur. 2d, Eminent Domain, § 336.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 24, 44, 89-95.

ALR. - Right to and measure of compensation to owner of fee when telegraph or telephone line is erected along railroad right of way or highway, 19 A.L.R. 383 .

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679 .

Condemnor's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 A.L.R.4th 68.

22-3-1. Direction and contents of notice of condemnation.

When a telegraph or telephone company undertakes to condemn so much of the right of way of a railroad company as may be necessary for the purpose of constructing, maintaining, and operating its telegraph or telephone lines along and upon such right of way, the notice of condemnation provided for in Code Section 22-2-26 shall be directed to the railroad company and shall:

  1. Set out the manner in which the telegraph or telephone company proposes to construct its lines on the right of way of the railroad company;
  2. Fix the time when the hearing shall be had;
  3. Give the name of the assessor selected by the telegraph or telephone company; and
  4. Request the railroad company to select an assessor.

    (Ga. L. 1898, p. 54, § 1; Civil Code 1910, § 5236; Code 1933, § 36-701.)

JUDICIAL DECISIONS

Notice held sufficient. - See Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554 , 42 S.E. 1 (1902).

Cited in Pye v. State Hwy. Dep't, 226 Ga. 389 , 175 S.E.2d 510 (1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 98, 99, 102, 126, 127, 138, 185. 27 Am. Jur. 2d, Eminent Domain, §§ 336, 393, 394.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 44, 79, 242-244.

ALR. - Right of carrier to discriminate between telegraph or telephone companies, 60 A.L.R. 1081 .

Compensation for, or extent of rights acquired by, taking of land, as affected by condemnor's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Eminent domain: validity of appropriation of property for anticipated future use, 80 A.L.R.3d 1071.

Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's having power of eminent domain, 87 A.L.R.3d 1265.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

22-3-2. Manner of service of notice.

Notice of condemnation shall be served upon the railroad company in the manner provided for the service of other actions upon railroad companies. It shall not be necessary to serve such notice upon any person or corporation other than the railroad company in possession of and operating the railroad whose right of way is sought to be condemned by the telegraph or telephone company for its use; and only the interest of such railroad company so served shall be affected by the proceedings.

(Ga. L. 1898, p. 54, § 1; Civil Code 1910, § 5237; Code 1933, § 36-702.)

JUDICIAL DECISIONS

This procedure affords due process of law to the railroad companies whose property is sought to be condemned. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554 , 42 S.E. 1 (1902); Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420 , 75 S.E. 471 , 42 L.R.A. (n.s.) 225 (1912).

Contract alternative. - Cable company that possessed certificate of authorization from Georgia Public Service Commission that allowed it to exercise eminent domain under O.C.G.A. § 46-5-1(a) properly entered into contract with railroad, in lieu of eminent domain proceedings, to allow construction of communication lines along railroad's rights of way. Davis v. Williams Communs., Inc., 258 F. Supp. 2d 1348 (N.D. Ga. 2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 391, 394.

C.J.S. - 30 C.J.S., Eminent Domain, §§ 245-249.

ALR. - Eminent domain: permissible modes of service of notice of proceedings, 89 A.L.R.2d 1404.

22-3-3. Necessity for only one proceeding; location of proceedings; form of assessors' findings.

There need be but one condemnation proceeding against the same railroad company, which proceeding may be conducted in any county where service can be made upon the company as provided in Code Section 22-3-2. However, if the railroad company has a main or principal office located in this state, the proceeding shall be conducted in the county in which the main or principal office is located. The assessors shall make their findings of the damages to which the railroad company may be entitled by reason of the construction, maintenance, and operation of the telegraph or telephone lines in the manner set out in the notice.

(Ga. L. 1898, p. 54, § 1; Civil Code 1910, § 5238; Code 1933, § 36-703.)

RESEARCH REFERENCES

C.J.S. - 30 C.J.S., Eminent Domain, §§ 232, 233.

ALR. - Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

22-3-4. Location of hearing before assessors; evidence upon which findings may be based.

The hearing may be conducted in the office of the judge of the probate court of the county in which the condemnation proceedings are had or at such other place as the assessors may fix. In assessing the damages to the railroad company, the assessors need not go upon or inspect the premises sought to be condemned, but they shall make their findings upon the testimony heard by them.

(Ga. L. 1898, p. 54, § 1; Civil Code 1910, § 5239; Code 1933, § 36-704.)

JUDICIAL DECISIONS

Elements to be considered in determination of damages. - See Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904); Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420 , 75 S.E. 471 , 42 L.R.A. (n.s.) 225 (1912).

Measure of damages in condemnation case under this article is value of land actually taken, and the extent to which the value and use of the right of way by the railway company is diminished by its use by the telegraph company. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

Value of right of way for other uses cannot be considered. - In arriving at the value of the land actually appropriated, the general salable value of the right of way for other uses than that to which it is applied by the railway company cannot be considered; the appropriation to public use amounts to a withdrawal of the right of way from any use except that which is necessary or ancillary to the operation of the railroad. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

Peculiar advantages of right of way not proper element of damages. - That the right of way may possess peculiar advantages and benefits to the telegraph company in the construction and maintenance of its line is not a proper element in the estimate of damages. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

Appeal from assessors' award under § 22-2-80 is permitted in a proceeding under this article. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268 , 48 S.E. 15 , 1 Ann. Cas. 734 (1904).

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 409, 419-442.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 271-275. 30 C.J.S., Eminent Domain, §§ 296-298.

ALR. - Right of court to reduce or increase award in condemnation and confirm it as reduced or increased, 61 A.L.R. 194 .

Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Right to view by jury in condemnation proceedings, 77 A.L.R.2d 548.

Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment, 92 A.L.R.2d 346.

ARTICLE 2 CONSTRUCTION AND OPERATION OF ELECTRIC POWER PLANTS

JUDICIAL DECISIONS

Proceeding before special master available to private company. - A private company possessing the power of eminent domain is authorized to employ the condemnation procedure of Art. 2 of Ch. 2 of this title. Nodvin v. Georgia Power Co., 125 Ga. App. 821 , 189 S.E.2d 118 (1972).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 20, 56, 138. 27 Am. Jur. 2d, Eminent Domain, §§ 344, 345.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 24, 46, 58, 89-93.

ALR. - Right to and measure of compensation to owner of fee when telegraph or telephone line is erected along railroad right of way or highway, 19 A.L.R. 383 .

Elements and measure of compensation for power lines or other wire lines over private property, 49 A.L.R. 697 , 124 A.L.R. 407 .

Limitation applicable to action or proceeding by owner for compensation where property is taken in exercise of eminent domain without antecedent condemnation proceeding, 123 A.L.R. 676 .

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679 .

Condemnor's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

Correlative rights of dominant and servient owners in right of way for electric line, 6 A.L.R.2d 205.

Liability of water distributor for damage caused by water escaping from main, 20 A.L.R.3d 1294.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Eminent domain: review of electric power company's location of transmission line for which condemnation is sought, 19 A.L.R.4th 1026.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific cover, 26 A.L.R.4th 68.

PART 1 G ENERAL PROVISIONS

22-3-20. Power of persons operating or constructing electric plants to purchase, lease, or condemn rights of way and easements.

Any person operating or constructing or preparing to construct a plant for generating electricity shall have the right to purchase, lease, or condemn rights of way or other easements over the lands of others in order to run power lines, maintain dams, flow backwater, or carry on other activities necessary for constructing and operating such a plant, provided that the person first pays just compensation to the owner of the land to be affected.

(Ga. L. 1897, p. 68, § 1; Civil Code 1910, § 5240; Code 1933, § 36-801.)

Cross references. - Granting of easements, rights of way, etc., to electric utilities for purposes of producing hydroelectric power from dam sites on property owned by governing authority of recreation system, § 36-64-3.1 .

Law reviews. - For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007).

JUDICIAL DECISIONS

This Code section is constitutional. Jones v. North Ga. Elec. Co., 125 Ga. 618 , 54 S.E. 85 , 6 L.R.A. (n.s.) 122, 5 Ann. Cas. 526 (1906); Nolan v. Central Ga. Power Co., 134 Ga. 201 , 67 S.E. 656 (1910); Banks v. Georgia Power Co., 267 Ga. 602 , 481 S.E.2d 200 (1997).

Section grants power of eminent domain to corporate utilities. - The power of eminent domain is inherent in the sovereign state, but lies dormant until granted by Act of the Legislature; under the provisions of this section, corporate utilities supplying electric power to the public have been granted the power of eminent domain. Harwell v. Georgia Power Co., 154 Ga. App. 142 , 267 S.E.2d 769 , aff'd, 246 Ga. 203 , 269 S.E.2d 464 (1980).

This section limits interest in land which power company can condemn for electric distribution purposes. B. & W. Hen Farm, Inc. v. Georgia Power Co., 222 Ga. 830 , 152 S.E.2d 841 (1966).

This section confers no power to condemn undivided interest or easement in water-power the remainder of which is owned by the electric-light corporation which is seeking to condemn. Oconee Elec. Light & Power Co. v. Carter, 111 Ga. 106 , 36 S.E. 457 (1900); Nolan v. Central Ga. Power Co., 134 Ga. 201 , 67 S.E. 656 (1910).

This section does not conflict with § 44-8-3 , defining the rights of a riparian owner of a nonnavigable stream. Nolan v. Central Ga. Power Co., 134 Ga. 201 , 67 S.E. 656 (1910).

Determination of "public use". - Whether a purpose is a public or private purpose within the meaning of the law relating to eminent domain does not depend on use or the amount of use by the public, but upon the right of the public to such use. Rogers v. Toccoa Elec. Power Co., 163 Ga. 919 , 137 S.E. 272 (1927).

Foreign corporation domesticated in Georgia has right to condemn land. - A corporation chartered in another state with the right to own and operate an electric plant and engage in the business of generating, transmitting, and selling electricity for commercial and domestic use, and later domesticated in this state by appropriate proceedings, has the right to condemn the land of others for the purpose of running its lines or wires over the same and using and maintaining poles and appliances thereon in order to distribute electric current to the public from its plant. Perry v. Folkston Power Co., 181 Ga. 527 , 183 S.E. 58 (1935).

A foreign corporation owning or controlling water power in this state, when domesticated under the laws of Georgia, can exercise the right of eminent domain in this state for the purposes mentioned in this section. A foreign corporation without being so domesticated has no such right. Head v. Rich, 61 Ga. App. 293 , 6 S.E.2d 73 (1939), aff'd, 190 Ga. 680 , 10 S.E.2d 183 (1940) (decided under former Code 1933 § 22-1601).

De facto corporation cannot exercise eminent domain. - A power company that has become a de facto corporation cannot exercise the powers conferred by this section. Rogers v. Toccoa Power Co., 161 Ga. 524 , 131 S.E. 517 , 44 A.L.R. 534 (1926).

Effect of county ordinance impeding rights under section. - Pursuant to O.C.G.A. § 46-3-201(b)(9), the electric corporation, which had to condemn property in order to effectuate its project, did not have to demonstrate to the county the necessity or the appropriateness of its proposed project; thus, the county ordinance prohibiting the electric lines for three years was unconstitutional. Rabun County v. Ga. Transmission Corp., 276 Ga. 81 , 575 S.E.2d 474 (2003).

Forsyth County, Ga., Unified Development Code §§ 21-6.1 and 21-6.5, were defective because they required a utility to successfully comply with the ordinance's procedures, and authorized the county to deny "any or all" portions of an application; as such, they were unconstitutional infringements on the utility's legislatively-delegated power of eminent domain. Forsyth County v. Ga. Transmission Corp., 280 Ga. 664 , 632 S.E.2d 101 (2006).

Eminent domain power not lost through furnishing power in another state. - A corporation having the power of eminent domain under this section would not lose such power because it also furnished electric power in Tennessee. Rogers v. Toccoa Elec. Power Co., 163 Ga. 919 , 137 S.E. 272 (1927).

This section does not authorize power company to maintain nuisance. Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749 , 65 S.E. 844 (1909); Central Ga. Power Co. v. Ham, 139 Ga. 569 , 77 S.E. 396 (1913).

Notice to owner required. - Preliminary to the exercise of the power granted by this section, for the purpose of erecting an electric line with necessary poles and fixtures, it is incumbent upon the power company to serve a notice on the owner of the property sought to be condemned, which notice shall describe the property with the same definiteness as is required in a deed of conveyance of land. Gunn v. Georgia Power Co., 205 Ga. 85 , 52 S.E.2d 449 (1949).

In proceeding under this section sole question for assessors is amount of compensation to be paid; the assessors cannot pass upon the legal power of the company to institute such proceedings. Rogers v. Toccoa Power Co., 161 Ga. 524 , 131 S.E. 517 , 44 A.L.R. 534 (1926).

Injunction is proper remedy to determine power of eminent domain. The remedy of the landowner who seeks to challenge the legal power of a company to condemn is to apply to a court of equity to enjoin the condemnation proceedings if they are unauthorized. Rogers v. Toccoa Power Co., 161 Ga. 524 , 131 S.E. 517 , 44 A.L.R. 534 (1926).

And injunction is proper remedy for questioning legality of corporation's charter. Rogers v. Toccoa Power Co., 161 Ga. 524 , 131 S.E. 517 , 44 A.L.R. 534 (1926).

Owner who permits appropriation of land estopped from ejectment or injunction. - If a landowner stands by and permits, without legal objection, a public utility company to appropriate his land to its necessary corporate use until such becomes a necessary and constituent part of its service to the public, and the rights of the public intervene to such extent that to oust the company would interrupt the service and deny it to the public, the landowner, not for the protection so much of the company but for the benefit of the public, will be estopped from recovering the land in ejectment from enjoining its use for the service, but will, if he moves in time, be remitted to an appropriate action for damages. Wiggins v. Southern Bell Tel. & Tel. Co., 245 Ga. 526 , 266 S.E.2d 148 (1980).

Damage to other property from power lines on right of way. - The power, telephone and telegraph companies all have the power of eminent domain, and could exercise that power to acquire the right to erect their lines upon the railroad's right of way. That they choose to acquire by contract such right, as against the railroad, does not render the railroad company liable for their alleged failure also to compensate the plaintiff for the taking or damaging of her property by their erection of power and communication lines on the railroad's right of way. Tompkins v. Atlantic Coast Line R.R., 89 Ga. App. 171 , 79 S.E.2d 41 (1953).

Cited in Pye v. State Hwy. Dep't, 226 Ga. 389 , 175 S.E.2d 510 (1970); Harwell v. Georgia Power Co., 246 Ga. 203 , 269 S.E.2d 464 (1980); Cox Enters., Inc. v. Carroll City/County Hosp. Auth., 247 Ga. 39 , 273 S.E.2d 841 (1981); Banks v. Georgia Power Co., 220 Ga. App. 84 , 469 S.E.2d 218 (1996).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 56, 132, 138, 150-152, 165, 195, 212. 27 Am. Jur. 2d, Eminent Domain, §§ 321-324, 344, 345, 350.

25 Am. Jur. Pleading and Practice Forms, Waterworks and Water Companies, § 2.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 46, 58, 110-185, 195-205. 30 C.J.S., Eminent Domain, §§ 449-451. 73 C.J.S., Public Utilities, § 2.

ALR. - Furnishing electricity to public as public use or purpose for which power of eminent domain may be exercised, 44 A.L.R. 735 , 58 A.L.R. 787 .

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Electric light or power line in street or highway as additional servitude, 58 A.L.R.2d 525.

Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Eminent domain: right to enter land for preliminary survey or examination, 29 A.L.R.3d 1104.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's having power of eminent domain, 87 A.L.R.3d 1265.

Liability for overflow of water confined or diverted for public power purposes, 91 A.L.R.3d 1065.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding, 23 A.L.R.4th 631.

22-3-21. Payment of compensation or damages.

In fixing the compensation or damage for both actual and consequential damages, either or both shall be paid by the persons seeking to condemn property as provided in this article.

(Ga. L. 1925, p. 272, § 1; Code 1933, § 36-802.)

RESEARCH REFERENCES

C.J.S. - 29A C.J.S., Eminent Domain, § 195.

ALR. - Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property, 6 A.L.R.2d 1197.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Liability of water distributor for damage caused by water escaping from main, 20 A.L.R.3d 1294.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking, 59 A.L.R.3d 488.

Eminent domain: consideration of fact that landowner's remaining land will be subject to special assessment in fixing severance damages, 59 A.L.R.3d 534.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Liability for overflow of water confined or diverted for public power purposes, 91 A.L.R.3d 1065.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

22-3-22. Condemnation of mills, factories, and dams.

Any person seeking to exercise the power of eminent domain under Code Section 22-3-20 shall have the right and authority to acquire by condemnation any mill, factory, dam, or other property or interest connected with same, except cotton mills or factories or any plant engaged in furnishing electric power to the public.

(Civil Code 1910, § 5242; Ga. L. 1925, p. 272, § 3; Code 1933, § 36-812.)

JUDICIAL DECISIONS

Protection accorded to mills and factories under this section extends to appurtenances necessary to their operation, but not to property from which the crude material is taken for supplying such mill or factory. Beuchler v. Georgia Ry. & Power Co., 139 Ga. 724 , 78 S.E. 121 (1913); Nolan v. Central Ga. Power Co., 134 Ga. 201 , 67 S.E. 656 (1910).

And protection applies to mills and factories operated by steam power as well as to those operated by water power. Stribbling v. Georgia Ry. & Power Co., 139 Ga. 676 , 78 S.E. 42 (1913).

Cited in Lewis v. Fidelity & Deposit Co., 292 U.S. 559, 54 S. Ct. 848 , 78 L. Ed. 1425 (1934).

RESEARCH REFERENCES

C.J.S. - 29 C.J.S., Eminent Domain, §§ 71, 107, 114, 150, 162.

ALR. - Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

PART 2 A CQUISITION OF RIGHT TO FLOOD ROADS AND HIGHWAYS

22-3-40. "Public road" and "public highway" defined.

As used in this part, the term "public road" or "public highway" means not only roads and highways proper but bridges, culverts, and appurtenances as well.

(Ga. L. 1927, p. 370, § 4; Code 1933, § 36-803.)

22-3-41. Power to acquire right to flood roads and highways.

Any person referred to in Code Section 22-3-20 shall have the right and authority to acquire by purchase or condemnation the right to flood private roads or highways. Any such person shall also have the right to acquire by condemnation the right to flood public roads or highways by paying to the state or county authorities having jurisdiction over the same the cost of locating, laying out, constructing, and opening other public roads or highways to replace the public roads or highways flooded or intended to be flooded and also by paying to the state and county authorities any other damages that may be the natural and probable consequence of such flooding.

(Ga. L. 1925, p. 272, § 1; Code 1933, § 36-804.)

Cross references. - Abandonment of public roads, Ch. 7, T. 32.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 73, 74, 103, 150-152, 178. 27 Am. Jur. 2d, Eminent Domain, §§ 329, 344, 345, 350.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 81, 110, 111, 122, 129, 148, 151, 153.

ALR. - Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's having power of eminent domain, 87 A.L.R.3d 1265.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

22-3-42. Notice of intention to condemn.

If a public road or highway for which condemnation is sought is a part of the state highway system or if jurisdiction or control of the road or highway has been taken over or assumed by the State Transportation Board or other state authority, the notice of intention to condemn shall be addressed to and served upon the commissioner of transportation. If the road or highway is under the supervision or control of county authorities, the notice of intention to condemn shall be addressed to and served upon the judge of the probate court or upon any county commissioner or such other officer as is by law vested with jurisdiction over and control of the public roads of the county in which the road to be condemned is located.

(Ga. L. 1927, p. 370, § 4; Code 1933, § 36-808.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 393, 394.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 242-249.

22-3-43. Condemnation procedure; authorization of officers to act for state or county.

The procedure in the condemnation of public roads and highways shall be the same as provided by Chapter 2 of this title insofar as the procedures described in that chapter are not in conflict with this part. The public officer or officers to be notified and served as provided in Code Section 22-3-42 shall act for and in behalf of the state or county, as the case may be, in the appointment of an assessor and in all other respects as provided in Chapter 2 of this title with respect to the owner of the property or interest sought to be condemned.

(Ga. L. 1927, p. 370, § 4; Code 1933, § 36-809.)

RESEARCH REFERENCES

ALR. - Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

22-3-44. Appeal to superior court.

Within 30 days after the award of condemnation is made pursuant to Part 4 of Article 1 of Chapter 2 of this title or pursuant to Article 2 of Chapter 2 of this title, any party may appeal to the superior court of the county in which the public roads or highways lie by filing with the judge of the probate court of the county a written notice of appeal. Within ten days after his receipt of the notice, the judge shall transmit the notice to the superior court. The trial on such an appeal shall be de novo.

(Ga. L. 1925, p. 272, § 1; Code 1933, § 36-805.)

JUDICIAL DECISIONS

Cited in Hinton v. Georgia Power Co., 126 Ga. App. 416 , 190 S.E.2d 811 (1972); Brown v. Techdata Corp., 238 Ga. 622 , 234 S.E.2d 787 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Appeal and Error, §§ 146, 188. 27 Am. Jur. 2d, Eminent Domain, §§ 468-472.

C.J.S. - 30 C.J.S., Eminent Domain, §§ 343, 344, 352-354, 372.

ALR. - Right of court to reduce or increase award in condemnation and confirm it as reduced or increased, 61 A.L.R. 194 .

Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment, 92 A.L.R.2d 346.

22-3-45. Rights of condemnor pending appeal.

Upon the condemnor's paying the sum fixed by the assessor's award to the state or county authorities together with the cost of proceedings pending an appeal pursuant to Code Section 22-3-44 and upon the execution of a bond in double the amount of the award so fixed, with good and sufficient surety to pay the eventual condemnation award, the condemnor shall be entitled to flood the public roads or highways which are made the subject of the proceedings, provided that such right shall not vest absolutely in the condemnor until the final determination of the case and the payment or deposit in court of the final condemnation award.

(Ga. L. 1925, p. 272, § 1; Code 1933, § 36-806.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 469.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 186-194, 221, 227. 30 C.J.S., Eminent Domain, §§ 355, 449-452.

22-3-46. Restrictions on use of condemned road or highway by condemnor.

Before any public road or highway condemned under this part may be used by the condemnor, any new road or highway to be constructed pursuant to Code Section 22-3-41, including any and all bridges and culverts that may be necessary as a part thereof, shall be laid out, constructed, and made ready for public use by the condemnor. All of this new construction shall first be approved by the authorities having control of the condemned road or highway.

(Ga. L. 1927, p. 370, § 4; Code 1933, § 36-810.)

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, § 72.

22-3-47. Effect of part on rights of action of property owners and public utilities.

This part shall not be construed as taking away or in any way prejudicing any right of action possessed by a property owner or a public utility for damages to property caused by the closing of any public road or highway under this part.

(Ga. L. 1925, p. 272, § 1; Code 1933, § 36-807.)

RESEARCH REFERENCES

ALR. - Liability of water distributor for damage caused by water escaping from main, 20 A.L.R.3d 1294.

Liability for overflow of water confined or diverted for public power purposes, 91 A.L.R.3d 1065.

ARTICLE 3 CONSTRUCTION AND OPERATION OF WATERWORKS AND SANITARY SEWAGE SYSTEMS

RESEARCH REFERENCES

C.J.S. - 29A C.J.S., Eminent Domain, §§ 24, 45, 89-93.

ALR. - Right to and measure of compensation to owner of fee when telegraph or telephone line is erected along railroad right of way or highway, 19 A.L.R. 383 .

Limitation applicable to action or proceeding by owner for compensation where property is taken in exercise of eminent domain without antecedent condemnation proceeding, 123 A.L.R. 676 .

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679 .

Condemnor's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

22-3-60. Authority to lease, purchase, or condemn property or receive donations for waterworks and sewage systems.

Any nongovernmental entity constructing, owning, or operating any waterworks or sanitary sewerage system, or both, in this state shall have the right, power, privilege, and authority to lease, purchase, or condemn property or any interest therein, including easements, or to receive donations or grants of property or any interest therein, including easements, for the purpose of constructing and operating a waterworks, a water distribution system, a sewerage collection system, or a sewage treatment and disposal system, or any combination of such systems or facilities; provided, however, that prior to condemning property in any political subdivision, any such entity shall first obtain the consent of the governing authority of such political subdivision after the requirements of Code Section 22-1-10 have been satisfied. Consent shall be granted by resolution or ordinance.

(Ga. L. 1889, p. 184, § 1; Civil Code 1895, § 2407; Civil Code 1910, § 2923; Code 1933, § 36-901; Ga. L. 1990, p. 731, § 1; Ga. L. 2000, p. 1514, § 1; Ga. L. 2006, p. 39, § 16/HB 1313.)

The 1990 amendment, effective July 1, 1990, substituted "waterworks or sanitary sewerage system, or both," for "waterworks" near the beginning of the Code section, and substituted the language beginning with "operating a waterworks" and ending with "systems or facilities" for "operating waterworks" at the end of the Code section.

The 2000 amendment, effective May 1, 2000, substituted "Any nongovernmental entity" for "Any person" at the beginning and added the proviso at the end.

The 2006 amendment, effective April 4, 2006, substituted "after the requirements of Code Section 22-1-10 have been satisfied. Consent shall be granted by resolution or ordinance" for ", which consent may be granted by resolution or ordinance" at the end of this Code section. For applicability, see Editor's notes.

Cross references. - Authority of municipal corporations to exercise power of eminent domain for purposes of constructing, extending, etc., water systems and sewage systems, § 36-34-5 .

Acquisition and construction of water and sewage systems, § 36-34-5 .

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

JUDICIAL DECISIONS

Company holding franchise and having eminent domain power owes public duty. - A company which holds a franchise to conduct the business of furnishing water to a city and its inhabitants and which has the power of eminent domain under this section is a public service corporation, and owes a public duty to the city's inhabitants. Washington Water & Elec. Co. v. Pope Mfg. Co., 176 Ga. 155 , 167 S.E. 286 (1932).

Cited in Pye v. State Hwy. Dep't, 226 Ga. 389 , 175 S.E.2d 510 (1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 20, 59, 141. 27 Am. Jur. 2d, Eminent Domain, § 349. 78 Am. Jur. 2d, Waterworks and Water Companies, § 9.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 45, 65-86. 73 C.J.S., Public Utilities, § 2.

ALR. - Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Eminent domain: right to enter land for preliminary survey or examination, 29 A.L.R.3d 1104.

Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's having power of eminent domain, 87 A.L.R.3d 1265.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

22-3-61. Condemnation procedure.

If a person seeking to exercise the power of eminent domain under this article fails to procure, by contract, title to the land necessary or proper for the construction and successful operation of a waterworks or sanitary sewerage system, or both, and the parties cannot agree upon the damage done, the same shall be assessed as provided in Chapter 2 of this title.

(Ga. L. 1889, p. 184, § 2; Civil Code 1895, § 2408; Civil Code 1910, § 2924; Code 1933, § 36-902; Ga. L. 1990, p. 731, § 1.)

The 1990 amendment, effective July 1, 1990, substituted "a waterworks or sanitary sewerage system, or both," for "waterworks".

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 387-389, 409, 427-442.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 136-185, 218-221, 224. 30 C.J.S., Eminent Domain, §§ 271-275, 292-304.

ALR. - Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

22-3-62. Applicability of article.

The powers granted by this article shall apply to those persons who have entered into a contract with the proper authorities for supplying water for public purposes and to such persons providing water or sanitary sewerage services through water or sanitary sewerage systems, or both, which have been permitted by the Environmental Protection Division of the Department of Natural Resources.

(Ga. L. 1889, p. 184, § 3; Civil Code 1895, § 2409; Civil Code 1910, § 2925; Code 1933, § 36-903; Ga. L. 1990, p. 731, § 1.)

The 1990 amendment, effective July 1, 1990, deleted "only" preceding "to those persons" near the beginning of the section, and added the language beginning with "and to such persons" and ending with "Department of Natural Resources" at the end of the Code section.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 386.

C.J.S. - 29A C.J.S., Eminent Domain, § 225.

22-3-63. Authority to condemn property for purpose of constructing a waterworks, water distribution system, sewage collection system, or sewage treatment and disposal system.

Any other provision of law to the contrary notwithstanding, any nongovernmental entity which:

  1. Is privately owned and is operated under the collective management and control of the owners;
  2. Was in the business of providing water supply and sewerage collection and disposal prior to July 1, 1978;
  3. Has continuously owned a sanitary sewerage system since July 1, 1978, permitted by the Environmental Protection Division of the Department of Natural Resources; and
  4. On May 1, 2000, owns and operates one or more sewerage collection treatment and disposal systems serving 1,000 or more customers shall have the authority to condemn property or any interest therein, including easements, for the purpose of constructing and operating a waterworks, a water distribution system, a sewerage collection system, or a sewage treatment and disposal system, or any combination of such systems or facilities; provided, however, that such authority shall obtain the consent of the governing authority of the county or municipality that controls the land sought to be condemned in accordance with Code Section 22-3-60 . The authority granted by this Code section shall extend only to such counties and those counties immediately adjacent to such counties in which such entity owned or operated such waterworks or systems or combination as of January 1, 2000; and provided, further, that the authority provided for in this Code section shall terminate with respect to any entity if any interest in such business is transferred to another person or entity except through inheritance. (Code 1981, § 22-3-63 , enacted by Ga. L. 2000, p. 1514, § 2; Ga. L. 2006, p. 39, § 16/HB 1313.)

Effective date. - This Code section became effective May 1, 2000.

The 2006 amendment, effective April 4, 2006, inserted "obtain the consent of the governing authority of the county or municipality that controls the land sought to be condemned in accordance with Code Section 22-3-60. The authority granted by this Code section shall" in the middle of paragraph (4). For applicability, see Editor's notes.

Cross references. - Acquisition and construction of water and sewage systems, § 36-34-5 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, "May 1, 2000," was substituted for "the effective date of this Code section" in paragraph (4).

Editor's notes. - Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

ARTICLE 4 CONSTRUCTION AND OPERATION OF PETROLEUM PIPELINES

Effective date. - This article became effective May 9, 2017, for purposes of proposing rules and regulations and effective for all other purposes July 1, 2017.

Editor's notes. - Ga. L. 1995, p. 161, effective July 1, 1995, repealed the Code sections formerly codified at this article and enacted the former provisions on the construction and operation of petroleum pipelines. The former article consisted of Code Sections 22-3-70 through 22-3-72 (Part 1) and 22-3-80 through 22-3-83 (Part 2) and was based on Ga. L. 1981, Ex. Sess., p. 8 (Code enactment Act) and Ga. L. 1994, p. 229, §§ 1 and 2. Ga. L. 1995, p. 161 also enacted an Article 4, effective from March 30, 1995, until July 1, 1995, which consisted of Code Section 22-3-83.

Ga. L. 2017, p. 744, § 2/HB 413, effective May 9, 2017, for purposes of proposing rules and regulations and effective for all other purposes July 1, 2017, repealed the Code sections formerly codified at this article and enacted the current article. The former article consisted of Code Sections 22-3-80 through 22-3-91, relating to the construction, operation, etc., of petroleum pipelines, and was based on Ga. L. 1995, p. 161, § 2; Ga. L. 1996, p. 6, § 22; Ga. L. 2016, p. 744, § 1/HB 1036 and Ga. L. 2017, p. 774, § 22(2-4)/HB 323.

Ga. L. 2017, p. 774, § 54(e)/HB 323, not codified by the General Assembly, provides: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2017 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to former Code Section 22-3-89 by Ga. L. 2017, p. 774, § 22(4)/HB 323, was not given effect.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former O.C.G.A. § 22-3-70 et seq. are included in the annotations for this article.

Petroleum pipeline operators were entitled to clear easements. - Operators of petroleum pipelines were entitled to clear easements to permit aerial inspection and access by maintenance crews. Avery v. Colonial Pipeline Co., 213 Ga. App. 388 , 444 S.E.2d 363 (1994) (decided under former O.C.G.A. § 22-3-70 et seq.)

RESEARCH REFERENCES

Trial of a Gas Pipeline Leak and Explosion Case, 25 Am. Jur. Trials 415.

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 20, 55, 74, 90, 141, 178.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 24, 255, 256. 30 C.J.S., Eminent Domain, § 450. 73 C.J.S., Public Utilities, § 2.

ALR. - Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Eminent domain: right to enter land for preliminary survey or examination, 29 A.L.R.3d 1104.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding, 23 A.L.R.4th 631.

22-3-80. Definitions.

As used in this article, the term:

  1. "Existing petroleum pipeline" shall have the same meaning as set forth in Code Section 12-17-1.
  2. "Expansion" shall have the same meaning as set forth in Code Section 12-17-1.
  3. "Extension" shall have the same meaning as set forth in Code Section 12-17-1.
  4. "Maintenance" shall have the same meaning as set forth in Code Section 12-17-1.
  5. "New petroleum pipeline" shall have the same meaning as set forth in Code Section 12-17-1.
  6. "Parallel petroleum pipeline" shall have the same meaning as set forth in Code Section 12-17-1.
  7. "Petroleum pipeline" shall have the same meaning as set forth in Code Section 12-17-1.
  8. "Petroleum pipeline company" shall have the same meaning as set forth in Code Section 12-17-1 . (Code 1981, § 22-3-80 , enacted by Ga. L. 2017, p. 744, § 2/HB 413.)

22-3-81. Right to acquire property or property interests by eminent domain.

Subject to the provisions, conditions, and restrictions of this article, petroleum pipeline companies are granted the power to acquire property or interests in property by eminent domain for the purpose of an expansion, an extension, maintenance, or construction of a new petroleum pipeline.

(Code 1981, § 22-3-81 , enacted by Ga. L. 2017, p. 744, § 2/HB 413.)

22-3-82. General certificate and permitting requirements.

  1. A petroleum pipeline company shall not exercise the power of eminent domain granted in Code Section 22-3-81 for the purpose of constructing a new petroleum pipeline or for an extension unless and until a certificate of public convenience and necessity is issued by the commissioner of transportation as provided in Code Section 22-3-83 and a permit is issued by the director of the Environmental Protection Division of the Department of Natural Resources as provided in Chapter 17 of Title 12.
  2. No certificate of public convenience and necessity or permit as provided in Code Section 22-3-83 shall be required of a petroleum pipeline company that is:
    1. Not exercising the power of eminent domain to acquire property; or
    2. Exercising the power of eminent domain for the purpose of maintenance or expansion. (Code 1981, § 22-3-82 , enacted by Ga. L. 2017, p. 744, § 2/HB 413.)

22-3-83. Certificate of public convenience and necessity; requirements.

  1. On or after July 1, 2017, a petroleum pipeline company desiring to use the power of eminent domain granted under this article to acquire property for a new petroleum pipeline or an extension shall be required to obtain a certificate of public convenience and necessity from the commissioner of transportation as provided in this Code section.
  2. Any application for a certificate of public convenience and necessity shall contain, at a minimum:
    1. A description of the proposed project together with its siting information, including, but not limited to, a map showing the proposed location of the route of the new petroleum pipeline or of the proposed extension;
    2. A description of the public convenience and necessity that support the proposed location of the route of the new petroleum pipeline or of the proposed extension;
    3. The width of the proposed petroleum pipeline corridor up to a maximum width of one-third mile;
    4. A showing that the use of the power of eminent domain may be necessary for construction of the new petroleum pipeline or for the proposed extension;
    5. A showing that the public convenience and necessity for the petroleum pipeline justifies the use of the power of eminent domain; and
    6. Any other information that the Department of Transportation may require by rules and regulations.
  3. Within ten days of applying for a certificate of public convenience and necessity, the applicant shall provide:
    1. Public notice in the legal organ of each county through which the proposed route of the new petroleum pipeline or of the extension is to be located; and
    2. Written notice of the filing of an application under this Code section to all landowners whose property is located within the proposed route of the new petroleum pipeline or of the extension. Such notice shall be delivered to each landowner and contain the following language in boldface type:

      "YOUR PROPERTY IS LOCATED WITHIN THE PROPOSED ROUTE OF A PETROLEUM PIPELINE FOR WHICH AN APPLICATION FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY HAS BEEN FILED PURSUANT TO ARTICLE 4 OF CHAPTER 3 OF TITLE 22 OF THE OFFICIAL CODE OF GEORGIA ANNOTATED. SAID ARTICLE ALONG WITH CHAPTER 17 OF TITLE 12 OF THE OFFICIAL CODE OF GEORGIA ANNOTATED PROVIDE SPECIFIC REQUIREMENTS WHICH MUST BE FOLLOWED BY PETROLEUM PIPELINE COMPANIES BEFORE THEY MAY BUILD A NEW PETROLEUM PIPELINE OR MODIFY AN EXISTING PETROLEUM PIPELINE. THESE PROVISIONS OF THE OFFICIAL CODE OF GEORGIA ANNOTATED ALSO PROVIDE SPECIFIC RIGHTS FOR YOUR PROTECTION. YOU SHOULD FAMILIARIZE YOURSELF WITH THOSE REQUIREMENTS AND YOUR RIGHTS."

    1. In making a decision as to whether to grant a certificate of public convenience and necessity, the commissioner of transportation shall consider the following:
      1. Whether existing petroleum pipelines or distribution systems are adequate to meet the reasonable public needs;
      2. The volume of demand for such petroleum, and whether such demand and that reasonably to be anticipated in the future can support already existing petroleum pipelines and distribution systems, if any, and also the petroleum pipeline or distribution system proposed by the applicant;
      3. The financial ability of the applicant to furnish adequate continuous service and to meet the financial obligations of the service which the applicant proposes to perform;
      4. The adequacy of the supply of petroleum to serve the public;
      5. The economic feasibility of the petroleum pipeline or distribution system and the propriety of the engineering and contracting fees, the expenses, and the financing charges and costs connected with the petroleum pipeline or distribution system; and
      6. The effect on existing revenues and service of other petroleum pipelines or distribution systems, and particularly whether the granting of such certificate of public convenience and necessity will or may seriously impair existing public service.
    2. This subsection shall not be construed as exhaustively describing all factors which the commissioner of transportation may consider in his or her decision to grant or deny a certificate of public convenience and necessity.
  4. The applicant shall bear the burden of proof to demonstrate that the commissioner of transportation should issue a certificate of public convenience and necessity as provided under this Code section. The decision to issue or deny a certificate of public convenience and necessity shall be based on the record before the commissioner of transportation, which shall include, but not be limited to, the applicant's submissions, any documents submitted to the Department of Transportation pursuant to subsection (d) of this Code section, and research the commissioner of transportation may conduct in analyzing the application.
  5. The issuance or denial of a certificate of public convenience and necessity may be reviewed by a judge of the superior court of the county in which the pipeline company has an agent and place of doing business. The review shall be by petition filed within 30 days of the date of approval or disapproval of the application and shall be determined on the basis of the record before the commissioner of transportation. The action of the commissioner of transportation shall be affirmed if supported by substantial evidence.
    1. No later than July 1, 2018, the Department of Transportation shall, pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," promulgate such rules and regulations as are necessary and reasonable for purposes of enforcement of this Code section, which shall include, but may not be limited to:
      1. The submission of an application for a certificate of public convenience and necessity and provisions for the application review process, not to exceed 120 days in length;
      2. Provisions for a nonrefundable application fee which shall be sufficient to defray the administrative costs of review of the application by the Department of Transportation;
      3. Reasonable public notice of the filing of an application for a certificate of public convenience and necessity to a landowner who, after reasonable efforts, cannot personally be given the notice required in subsection (c) of this Code section; and
      4. Provisions for public meetings to be held prior to any action on any certificates of public convenience and necessity.
    2. No certificate of public convenience and necessity shall be granted by the commissioner of transportation prior to the promulgation of rules and regulations as provided for in this subsection; provided, however, that once such rules and regulations have been promulgated and applications are accepted for filing, if any application is not approved or is denied within 120 days of the date such application is filed with the Department of Transportation under this Code section, the application shall be deemed to be approved by operation of law. (Code 1981, § 22-3-83 , enacted by Ga. L. 2017, p. 744, § 2/HB 413; Ga. L. 2017, p. 774, § 22/HB 323.)

Editor's notes. - Ga. L. 2017, p. 774, § 54(e)/HB 323, not codified by the General Assembly, provides: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2017 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to paragraph (a)(2) of this Code section by Ga. L. 2017, p. 774, § 22(2)/HB 323, was not given effect.

22-3-84. Notice to landowner.

Prior to initiating eminent domain proceedings or threatening to do so, the petroleum pipeline company shall cause to be delivered to each landowner whose property may be condemned a written notice containing the following language in boldface type:

"CHAPTER 17 OF TITLE 12 AND ARTICLE 4 OF CHAPTER 3 OF TITLE 22 OF THE OFFICIAL CODE OF GEORGIA ANNOTATED PROVIDE SPECIFIC REQUIREMENTS WHICH MUST BE FOLLOWED BY PETROLEUM PIPELINE COMPANIES BEFORE THEY MAY EXERCISE THE RIGHT TO CONDEMN YOUR PROPERTY. THOSE PROVISIONS OF THE OFFICIAL CODE OF GEORGIA ANNOTATED ALSO PROVIDE SPECIFIC RIGHTS FOR YOUR PROTECTION. YOU SHOULD FAMILIARIZE YOURSELF WITH THOSE REQUIREMENTS AND YOUR RIGHTS PRIOR TO CONTINUING NEGOTIATIONS CONCERNING THE SALE OF YOUR PROPERTY TO A PETROLEUM PIPELINE COMPANY."

(Code 1981, § 22-3-84 , enacted by Ga. L. 2017, p. 744, § 2/HB 413.)

22-3-85. Use of condemnation procedures.

When a petroleum pipeline company that has met all the requirements of this article is unable to acquire the property or interest required for the purpose of an expansion, an extension, maintenance, or construction of a new petroleum pipeline, after reasonable negotiation with the owner of such property or interest, the petroleum pipeline company may acquire such property or interest by the use of the condemnation procedures authorized by Chapter 2 of this title.

(Code 1981, § 22-3-85 , enacted by Ga. L. 2017, p. 744, § 2/HB 413; Ga. L. 2017, p. 774, § 22/HB 323.)

Editor's notes. - Ga. L. 2017, p. 774, § 54(e)/HB 323, not codified by the General Assembly, provides: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2017 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to this Code section by Ga. L. 2017, p. 774, § 22(3)/HB 323, was not given effect.

ARTICLE 4A NATURAL OR ARTIFICIAL GAS

Effective date. - This article became effective May 3, 2016.

22-3-95. Eminent domain use by natural gas transporters or distributors.

The power of eminent domain may be exercised by persons who are or may be engaged in constructing or operating pipelines for the transportation or distribution of natural or artificial gas and by persons who are or may be engaged in furnishing natural or artificial gas for heating, lighting, or power purposes in this state.

(Code 1981, § 22-3-95 , enacted by Ga. L. 2016, p. 744, § 2/HB 1036.)

ARTICLE 5 CONSTRUCTION, OPERATION, ETC., OF WATERSHED PROJECTS, FLOOD-CONTROL PROJECTS, ETC., BY COUNTIES

OPINIONS OF THE ATTORNEY GENERAL

Counties may request federal administration of construction contracts under 16 U.S.C. § 1001 et seq. if such request is first approved by the State Soil and Water Conservation Committee. 1969 Op. Att'y Gen. No. 69-344.

RESEARCH REFERENCES

ALR. - Limitation applicable to action or proceeding by owner for compensation where property is taken in exercise of eminent domain without antecedent condemnation proceeding, 123 A.L.R. 676 .

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679 .

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Local use zoning of wetlands or flood plain as taking without compensation, 19 A.L.R.4th 756.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific cover, 26 A.L.R.4th 68.

22-3-100. Authority of counties to exercise power of eminent domain.

Every county of the State of Georgia may exercise the power of eminent domain for the purpose of taking and acquiring the property or other interests necessary:

  1. To enable the county to institute and to accomplish the completion of small watershed projects, works of improvements for watersheds, and projects for watershed protection and flood control and prevention under any applicable Act of the State of Georgia or act of the United States;
  2. For certain public parks, playgrounds, recreation centers, or other recreational facilities to be developed in connection with the development or construction of any small watershed project, any project for watershed protection or flood control and prevention, or works of improvements for watersheds; and
  3. To allow for ways of ingress to and egress from any and all such watershed projects, improvements of watershed projects, projects for watershed protection and flood control and prevention, and public parks, playgrounds, recreation centers, or other recreational facilities.

    (Ga. L. 1964, p. 234, §§ 1-3.)

Cross references. - Granting of easements, rights of way, etc., to electric utilities for purposes of producing hydroelectric power from dam sites on property owned by governing authority of recreation system, § 36-64-3.1 .

JUDICIAL DECISIONS

Property not used for purpose for which it was originally condemned may be devoted to another proper public use. Galloway v. Board of Comm'rs, 246 Ga. 472 , 271 S.E.2d 784 (1980).

Where a local governing authority has, in good faith, condemned property in fee simple for a public use, the condemnor, without the necessity for bringing another condemnation proceeding, may abandon the specific use for which the property was taken and devote the property to another public use. Galloway v. Board of Comm'rs, 246 Ga. 472 , 271 S.E.2d 784 (1980).

And title to condemned property does not revert to original owner. - Where a governing body condemns lands in fee simple, the failure to use the lands for the purpose for which they were condemned does not cause title to revert to the original owners. Galloway v. Board of Comm'rs, 246 Ga. 472 , 271 S.E.2d 784 (1980).

Use of lakes on condemned property for recreation is proper. - The very existence of paragraph (2) of this section illustrates that where property condemned for watershed projects and flood control is not ultimately used for these purposes, using lakes on the property as public recreational facilities is a proper, alternative public use. Galloway v. Board of Comm'rs, 246 Ga. 472 , 271 S.E.2d 784 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Intent of words "recreational centers or other recreational facilities, to be developed in connection with . . ." is that a proposed facility, which may be used for recreational purposes, must also have substantial, tangible watershed or flood control benefits. 1967 Op. Att'y Gen. No. 67-274.

Condemnation where project cosponsored by conservation district and county. - With respect to a small watershed project instituted under the cosponsorship of a soil and water conservation district and a county or counties either the district or the counties may condemn property for the project in compliance with the pertinent statutes. 1967 Op. Att'y Gen. No. 67-108.

No requirement that appraised amount be placed in trust prior to ruling. - It is not necessary for the agency bringing condemnation proceedings to place any appraised amount in trust prior to a court ruling; however, if assessors are appointed as provided in § 22-2-135 , the condemning authority cannot appeal the assessors' award without tender of the amount of the award to the condemnee or payment into the registry of the court; also the full sum awarded in any condemnation proceeding must be tendered to the condemnee, or paid into court in the event the condemnee refuses to accept payment, before the condemnor may enter upon, occupy, or subject the land to its use. 1967 Op. Att'y Gen. No. 67-108.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 19, 26, 60, 65, 85, 128, 132, 140, 141, 165, 196. 27 Am. Jur. 2d, Eminent Domain, §§ 323, 349, 350. 50 Am. Jur. 2d, Levees and Flood Control, § 8.

C.J.S. - 28 C.J.S., Easements, §§ 5, 35. 29A C.J.S., Eminent Domain, §§ 21, 23, 30, 63, 64, 65, 105, 117, 151, 212. 30 C.J.S., Eminent Domain, § 450.

ALR. - Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Eminent domain: right to enter land for preliminary survey or examination, 29 A.L.R.3d 1104.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

22-3-101. Condemnation procedure.

For the purposes designated in Code Section 22-3-100, every county of the State of Georgia may proceed to condemn the necessary property or other interest in accordance with the procedures set forth by the pertinent eminent domain statutes of this state and in accordance with all existing laws applicable to the condemnation of private property for public use, including Article 2 of Chapter 2 of this title.

(Ga. L. 1964, p. 234, § 4.)

RESEARCH REFERENCES

ALR. - Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment, 92 A.L.R.2d 346.

22-3-102. Requirement of condemnation of fee simple title to land to be flooded permanently.

In any proceeding under this article, the condemnor shall be required to condemn the fee simple title to all land not otherwise acquired which will be covered by permanent flooding.

(Ga. L. 1964, p. 234, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 130-132, 192, 195, 196. 27 Am. Jur. 2d, Eminent Domain, § 350.

C.J.S. - 30 C.J.S., Eminent Domain, § 450.

ARTICLE 6 CONSTRUCTION OF LIGHTHOUSES, BEACONS, ETC., BY UNITED STATES GOVERNMENT

Cross references. - Authority of Department of Transportation to exercise power of eminent domain for construction and maintenance of intracoastal waterway, § 52-3-5 .

RESEARCH REFERENCES

ALR. - Power of eminent domain as exercisable by state or one of its political subdivisions for benefit of federal government, or by federal government exclusively under state authority, 143 A.L.R. 1040 .

22-3-120. Condemnation for construction of lighthouses, beacons, etc.

In any county in which the United States government authorizes the construction of lighthouses, beacons, range lights, or any other structure designed to assist the navigation of the waters of this state, any proper agency of the United States and the mayor of any city in that county shall mark out, by metes and bounds, the property necessary to be taken and shall convey to the owner of the property or of any interest therein notice of the planned construction. If the agency of the United States and the owner cannot agree on the compensation to be paid for taking the land, the Governor shall appoint one person and the owner of the land another; and these two shall select a third person. The three persons so selected shall constitute a commission to assess the just and adequate compensation to be paid according to the general method of condemning land provided in Article 1 of Chapter 2 of this title.

(Ga. L. 1882-83, p. 118, § 1; Civil Code 1895, § 26; Civil Code 1910, § 27; Code 1933, § 36-1101.)

JUDICIAL DECISIONS

This section does not require condemning authority to make effort to purchase by private contract as a condition precedent to the institution of condemnation proceedings thereunder. Varnadoe v. Housing Auth., 221 Ga. 467 , 145 S.E.2d 493 (1965).

Selection of what and how much property will be taken for a needed public use by a condemning authority will not be interfered with or controlled by the courts unless such selection is made in bad faith or beyond the power conferred by law. Varnadoe v. Housing Auth., 221 Ga. 467 , 145 S.E.2d 493 (1965).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 10-12, 41, 53, 118. 27 Am. Jur. 2d, Eminent Domain, §§ 409, 427-442.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 18, 23, 49, 62, 64, 224. 30 C.J.S., Eminent Domain, §§ 271-278, 292-305.

ALR. - Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Eminent domain: right to enter land for preliminary survey or examination, 29 A.L.R.3d 1104.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

22-3-121. Acquisition of right to enter lands and clear or cut timber for purposes of carrying out survey of coasts - Generally.

Any person employed under the act of the Congress of the United States providing for a survey of the coasts may enter upon lands within this state and clear or cut timber upon the same for any purpose legitimately connected with and necessary to carry out the survey, provided that no unnecessary injury be done thereby and all damages to the owner of the land be promptly paid.

(Laws 1847, Cobb's 1851 Digest, p. 155; Code 1863, § 25; Code 1868, § 23; Code 1873, § 23; Code 1882, § 23; Civil Code 1895, § 27; Civil Code 1910, § 28; Code 1933, § 36-1102.)

U.S. Code. - The federal Act referred to in this section is codified at 33 U.S.C. § 883a, which provides for the activities which the director of the Coast and Geodetic Survey is authorized to conduct.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 41, 73, 109, 173. 27 Am. Jur. 2d, Eminent Domain, § 269.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 27, 62, 64, 67, 104, 110-112, 128, 173, 195-205.

ALR. - Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

22-3-122. Acquisition of right to enter lands and clear or cut timber for purposes of carrying out survey of coasts - Manner of assessment where parties cannot agree on compensation.

If the parties representing the government of the United States and the owner of the property or of any interest therein pursuant to Code Section 22-3-121 cannot agree upon the amount of compensation to be paid for the property, the damages shall be assessed as provided in this title.

(Laws 1847, Cobb's 1851 Digest, p. 155; Code 1863, § 26; Code 1868, § 24; Code 1873, § 24; Code 1882, § 24; Civil Code 1895, § 28; Civil Code 1910, § 29; Code 1933, § 36-1103.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 266-296, 310-320, 409, 421, 427-442.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 224, 276-278, 292-305.

ALR. - Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

ARTICLE 7 OWNERSHIP OR OPERATION OF UTILITY SYSTEMS

Effective date. - This article became effective May 1, 2000.

Cross references. - Acquisition and construction of water and sewage systems, § 36-34-5 .

22-3-140. Authorization to utilize the declaration of taking method of eminent domain.

Any state agency, political subdivision of the state, county, or municipality owning or operating a sewage collection, treatment, or disposal system, a water or waste-water system, a gas or gas line system, an electrical or electrical line system, or a drain or storm-water system is authorized to utilize the declaration of taking method of eminent domain in order to acquire any private property in fee simple or in any lesser interest, including easements, for such systems and purposes, as such method of eminent domain is provided in Article 1 of Chapter 3 of Title 32. This article and method of eminent domain shall be supplementary to and cumulative of the methods of procedure for the exercise of the power of eminent domain prescribed in this title.

(Code 1981, § 22-3-140 , enacted by Ga. L. 2000, p. 1514, § 3.)

ARTICLE 8 ELECTRIC TRANSMISSION LINES

Effective date. - This article became effective July 1, 2004.

Editor's notes. - Ga. L. 2004, p. 568, § 3, not codified by the General Assembly, provides that this article: "shall apply to the exercise of eminent domain to acquire easements or other property interests for which land acquisition negotiations for purposes of constructing or expanding one or more electric transmission lines begin on or after such date. The provisions of this Act relating to additional compensation, reconveyance, and quitclaim shall apply to easements and other property interests acquired on or after July 1, 2004, through the exercise of eminent domain."

22-3-160. "Utility" defined.

As used in this article, the term "utility" means a person, corporation, or other entity that generates, transmits, distributes, supplies, or sells electricity for public or private use in this state or generates electricity in this state for transmission or distribution outside this state.

(Code 1981, § 22-3-160 , enacted by Ga. L. 2005, p. 60, § 22/HB 95.)

Effective date. - This Code section became effective April 7, 2005.

Editor's notes. - Ga. L. 2005, p. 60, § 22, redesignated the former provisions of this Code section as Code Section 22-3-160.1 and enacted the present provisions.

Law reviews. - For article on the 2004 enactment of this article, see 21 Ga. St. U.L. Rev. 157 (2004).

22-3-160.1. Public hearings required; exception to hearing requirement.

  1. Before exercising the right of eminent domain for purposes of constructing or expanding an electric transmission line with a design operating voltage of 115 kilovolts or greater and a length of one mile or more, any utility shall schedule and hold one or more public meetings with an opportunity for comment by members of the public. In any proceeding to exercise the right of eminent domain for purposes of an electric transmission line for which the utility began land acquisition negotiations on or after July 1, 2004, the utility shall be required to demonstrate substantial compliance with this Code section as a condition for exercising the right of eminent domain.
  2. Prior to the public meeting or meetings required by this Code section, the utility shall provide adequate public notice of the utility's intent to construct or expand an electric transmission line and adequate public notice of the public meeting or meetings related to the electric transmission line as follows:
    1. By publishing adequate public notice of said public meeting or meetings in a newspaper of general circulation in each county in which any portion of the electric transmission line is to be constructed or expanded. Said notice shall be published at least 30 days prior to the date of the first public meeting related to the electric transmission line and shall include the following: the date, time, and location of each meeting; a statement that the purpose of the meeting or meetings is to provide public notice of the utility's intent to construct or expand an electric transmission line for which the right of eminent domain may be exercised; a description of the proposed project including the general route of the electric transmission line and the general property area within which the utility intends to construct or expand the electric transmission line; the width of the proposed transmission line route; and a description of the alternative construction approaches considered by the utility and a statement of why such alternatives were rejected by the utility; and
    2. By providing written notice of the public meeting or meetings, by means of certified mail, to each owner of property, as indicated in the tax records of the county in which such property is located, over which the utility intends to construct or expand the electric transmission line and to the chairpersons or chief executives of the counties and the mayors of any municipalities in which such property is located. Such notice shall be mailed at least 30 days prior to the date of the first public meeting related to the electric transmission line and shall include all of the information required by paragraph (1) of this subsection.
  3. At least one public meeting shall be held in each county in which the electric transmission line would be located. In any county in which the electric transmission line would require acquisition of property rights from more than 50 property owners, two or more public meetings shall be held. The public meetings shall be held in an accessible location and shall be open to members of the public. At least one of the public meetings shall commence between 6:00 P.M. and 7:00 P.M., inclusive, on a business weekday. At the public meetings, the utility shall provide a description of the proposed project including the general route of the electric transmission line and the general property area within which the utility intends to construct or expand the electric transmission line, the width of the proposed transmission line route, and a description of the alternative construction approaches considered by the utility and a statement of why such alternatives were rejected by the utility. At the public meetings, the utility shall allow a reasonable opportunity for members of the public to express their views on the proposed project and to ask questions.
  4. A utility shall not be required to give notice of or hold public meetings with respect to any of the following:
    1. An electric transmission line to be constructed or expanded by a utility on an established right of way or land that was acquired by the utility or any other utility prior to July 1, 2004;
    2. An electric transmission line for which the utility began land acquisition negotiations prior to July 1, 2004;
    3. An electric transmission line to be constructed or expanded by a utility on an established right of way or land that is owned or controlled by a state agency, a county, a municipality, or an agency, bureau, or department of the United States;
    4. An electric transmission line to be constructed or expanded by a utility for the purpose of relocating an existing electric transmission line at the direction, order, or request of a state agency, a county, a municipality, or an agency, bureau, or department of the United States;
    5. An electric transmission line to be constructed or expanded by a utility without exercising the power of eminent domain to acquire the right of way or easement area for such line; or
    6. An electric transmission line to be constructed by a utility for the purpose of serving an electric substation or switching station to be constructed on a site that is owned or controlled by a utility customer to be served by such substation or switching station. (Code 1981, § 22-3-160 , enacted by Ga. L. 2004, p. 568, § 2; Code 1981, § 22-3-160.1 , as redesignated by Ga. L. 2005, p. 60, § 22/HB 95.)

The 2005 amendment, effective April 7, 2005, part of an Act to revise, modernize, and correct the Code, redesignated former Code Section 22-3-160 as this Code section and in subsection (a), substituted "any utility" for "any person, corporation, or other entity that generates, transmits, distributes, supplies, or sells electricity for public or private use in this state or generates electricity in this state for transmission or distribution outside this state (hereinafter in this article referred to as 'utility')".

22-3-161. Selection of route for electric transmission line; settlement negotiations with property owners.

  1. On and after July 1, 2004, before exercising the right of eminent domain for purposes of constructing or expanding an electric transmission line described in subsection (a) of Code Section 22-3-160.1, the utility shall select a practical and feasible route for the location of the electric transmission line. In selecting the route for the location of the electric transmission line, the utility shall consider existing land uses in the geographic area where the line is to be located, existing corridors, existing environmental conditions in the area, engineering practices related to the construction and operation of the line, and costs related to the construction, operation, and maintenance of the line.
  2. After the utility has selected the preferred route for the location of an electric transmission line, the utility shall attempt in good faith to negotiate a settlement with each property owner from whom the utility needs to acquire property rights for the line. In connection with the negotiations, the utility shall provide the property owner with a written offer to purchase the property rights, a document that describes the property rights, and a drawing that shows the location of the line on the owner's property.
  3. The requirements of subsections (a) and (b) of this Code section shall not apply to an electric transmission line described in subsection (d) of Code Section 22-3-160.1 . (Code 1981, § 22-3-161 , enacted by Ga. L. 2004, p. 568, § 2; Ga. L. 2005, p. 60, § 22/HB 95.)

The 2005 amendment, effective April 7, 2005, part of an Act to revise, modernize, and correct the Code, substituted "22-3-160.1" for "22-3-160" in subsections (a) and (c).

22-3-162. Application; additional compensation or reconveyance.

  1. This Code section shall apply to any easement or other property interest acquired on or after July 1, 2004, through exercise of the right of eminent domain for purposes of constructing or expanding an electric transmission line:
    1. With a capacity of 230 kilovolts or less if the utility has not begun such construction or expansion within 12 years from the date of acquisition and the land burdened by the easement or other property interest is not adjacent to an electric transmission line corridor in existence 12 years from the date of acquisition;
    2. With a capacity of more than 230 kilovolts if the utility has not begun such construction or expansion within 15 years from the date of acquisition and the land burdened by the easement or other property interest is not adjacent to an electric transmission line corridor in existence 15 years from the date of acquisition; and
    3. Of any capacity if the land burdened by the easement or other property interest is adjacent to an electric transmission line corridor in existence 15 years after the date of acquisition and the utility has not begun the construction or expansion for which the easement or other property right was acquired within 15 years from the date of acquisition.
  2. When this Code section becomes applicable to an easement or other property interest, the owner of the land burdened by such easement or property interest may apply to the utility that acquired the easement or other property interest or such utility's successor or assign for reconveyance or quitclaim of the easement or other property interest or for additional compensation for such easement or other property interest. The application shall be in writing, and the utility or its successor or assign shall act on the application within 60 days by:
    1. Executing a reconveyance or quitclaim of the easement or property interest upon receipt of compensation not to exceed the amount of the compensation paid by the utility for the easement or property interest at the time of acquisition; or
    2. Paying additional compensation to the owner of the land burdened by the easement or other property interest, such compensation to be calculated by subtracting the price paid by the utility for the easement or other property interest at the time of acquisition from the fair market value of the easement or other property interest at the time this Code section becomes applicable to such easement or other property interest.
  3. The choice between additional compensation or reconveyance or quitclaim shall be at the discretion of the utility or its successor or assign. (Code 1981, § 22-3-162 , enacted by Ga. L. 2004, p. 568, § 2.)

Law reviews. - For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008).

CHAPTER 4 RELOCATION OF PERSONS, BUSINESSES, ETC., DISPLACED BY FEDERAL-AID PROJECTS

Sec.

Cross references. - See Ga. Const. 1983, Art. I, Sec. III, Para. II, and Art. III, Sec. VI, Para. II.

Housing generally, Ch. 3, T. 8.

Clearance, rehabilitation, etc., of blighted areas, Ch. 4, T. 8.

Relocation assistance for individuals, businesses, etc., displaced by federal-aid and state-aid highway projects, Ch. 8, T. 32.

Law reviews. - For survey article on recent developments in Georgia law of remedies, see 34 Mercer L. Rev. 397 (1982). For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000).

RESEARCH REFERENCES

ALR. - Validity, construction, and application of state relocation assistance laws, 49 A.L.R.4th 491.

22-4-1. Short title; "Uniform Act" defined.

  1. This chapter shall be known as "The Georgia Relocation Assistance and Land Acquisition Policy Act."
  2. As used in this chapter, the term "Uniform Act" means the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended by the Uniform Relocation Act Amendments of 1987, Title IV of Public Law 100-17.

    (Ga. L. 1973, p. 512, § 1; Ga. L. 1989, p. 213, § 1.)

The 1989 amendment, effective March 30, 1989, designated the existing provisions as subsection (a), deleted "of 1973" at the end of subsection (a), and added subsection (b).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1996, quotation marks that enclosed "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970," and "Uniform Relocation Act Amendments of 1987," were deleted in subsection (b).

JUDICIAL DECISIONS

Cited in DeKalb County v. United Family Life Ins. Co., 235 Ga. 417 , 219 S.E.2d 707 (1975); DOT v. Doss, 238 Ga. 480 , 233 S.E.2d 144 (1977); City of Atlanta v. Rosebush, 146 Ga. App. 99 , 245 S.E.2d 440 (1978).

22-4-2. Legislative findings and declaration of necessity.

The General Assembly finds and declares that the prompt and equitable relocation and reestablishment of persons, businesses, farmers, and nonprofit organizations displaced when the state, any of its agencies or institutions (other than the Department of Transportation), or any county, municipal corporation, school district, political subdivision, public authority, public agency, public corporation, or public instrumentality, excluding electric membership corporations as defined in paragraph (3) of Code Section 46-3-171, (collectively referred to in this chapter as "several public entities") created under the Constitution and laws of the State of Georgia acquires land, with federal financial assistance, for a public use, are necessary to ensure that certain individuals do not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole. The General Assembly finds and declares that the establishment of uniform fair land acquisition policies will be beneficial to the public. The General Assembly finds that the Congress of the United States has, by enacting the Uniform Act, made funds available for relocation assistance and the implementation of certain land acquisition policies. The General Assembly further finds that the Congress of the United States has by the aforesaid statute provided for the total cessation after July 1, 1972, of federal financial assistance for public works projects which will displace persons or businesses unless the state complies with the requirements of the Uniform Act. The General Assembly finds and declares that the construction of public works projects with federal financial assistance is vital to the state and is in the best interest of the people of the state and that providing for the continuation of federal financial assistance at the highest possible level for public works projects is a legitimate public purpose. The General Assembly further finds that the cost of providing the assistance and services provided for in this chapter should be, and the same are declared to be, part of the necessary cost of federal-aid public works projects.

(Ga. L. 1973, p. 512, § 2; Ga. L. 1989, p. 213, § 2; Ga. L. 1990, p. 8, § 22.)

The 1989 amendment, effective March 30, 1989, inserted ", excluding electric membership corporations as defined in paragraph (3) of Code Section 46-3-171" near the middle of the first sentence; substituted "Uniform Act" for "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, Ninety-first Congress, approved January 2, 1971" in the third sentence; and substituted "the Uniform Act" for "Public Law 91-646" at the end of the fourth sentence.

The 1990 amendment, effective February 16, 1990, part of an Act to correct errors and omissions in the Code, revised language and punctuation in this Code section.

Cross references. - Federal financial aid for rehabilitation and redevelopment of blighted areas, § 8-4-10 .

JUDICIAL DECISIONS

This chapter does not create additional elements compensable under eminent domain laws, but provides supplemental assistance for particular losses incurred by reason of dislocation. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417 , 219 S.E.2d 707 (1975).

22-4-3. Applicability of Code Section 22-1-1 to chapter.

The definitions contained in paragraphs (6) and (8) of Code Section 22-1-1 shall not apply to this chapter.

(Code 1981, § 22-4-3 , Ga. L. 2006, p. 39, § 17/HB 1313.)

The 2006 amendment, effective April 4, 2006, substituted "paragraphs (6) and (8)" for "paragraphs (1) and (3)". For applicability, see Editor's notes.

Editor's notes. - This Code section was created as part of the Code revision and was thus enacted by Ga. L. 1981, Ex. Sess., p. 8.

Ga. L. 2006, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25, not codified by the General Assembly, provides that the amendment to this Code section shall apply to those condemnation proceedings filed on or after February 9, 2006, where title has not vested in the condemning authority unless constitutionally prohibited.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

22-4-4. Payments by public entities for relocation and replacement housing expenses.

The several public entities are authorized to and shall make or approve the payments required by Section 210 of the Uniform Act for the relocation expenses and replacement housing expenses of any person, family, business, farm operation, or nonprofit organization displaced by federal-aid projects in the state, the costs of which are now or hereafter financed in whole or in part from federal funds allocated to any of the several public entities.

(Ga. L. 1973, p. 512, § 3; Ga. L. 1989, p. 213, § 3.)

The 1989 amendment, effective March 30, 1989, substituted "Uniform Act" for "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, Ninety-first Congress, approved January 2, 1971," and deleted "public works" preceding "projects".

22-4-5. Providing of relocation assistance advisory services by public entities.

The several public entities are authorized to and shall provide the relocation assistance advisory services required by Section 205 of the Uniform Act for any person, family, business, farm operation, or nonprofit organization displaced by federal-aid projects in the state, the costs of which are now or hereafter financed in whole or in part from federal funds allocated to any of the several public entities.

(Ga. L. 1973, p. 512, § 4; Ga. L. 1989, p. 213, § 4.)

The 1989 amendment, effective March 30, 1989, substituted "Section 205 of the Uniform Act" for "Section 210 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, Ninety-first Congress, approved January 2, 1971," and deleted "public works" preceding "projects".

22-4-6. Payments by public entities for expenses incidental to property transfer, for mortgage penalties, and for property taxes.

The several public entities are authorized to and shall make or approve the payments required by Section 305(2) of the Uniform Act for expenses incidental to the transfer of real property acquired by any of the several public entities, for prepayment of mortgage penalties, and for a pro rata portion of real property taxes on real property acquired by any of the several public entities from any person, family, business, farm operation, or nonprofit organization displaced by federal-aid projects in the state, the costs of which are now or hereafter financed in whole or in part from federal funds allocated to any of the several public entities.

(Ga. L. 1973, p. 512, § 5; Ga. L. 1989, p. 213, § 5.)

The 1989 amendment, effective March 30, 1989, substituted "Uniform Act" for "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, Ninety-first Congress, approved January 2, 1971," and deleted "public works" preceding "projects".

JUDICIAL DECISIONS

This chapter does not require nor permit recovery of prepayment penalties as item of damages when federal funds are involved because such damages are not an item of damages under Georgia law. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417 , 219 S.E.2d 707 (1975).

RESEARCH REFERENCES

ALR. - Compensation for interest prepayment penalty in eminent domain proceedings, 84 A.L.R.3d 946.

22-4-7. Payments by state, public agencies, etc., for litigation expenses - Condemnation proceedings.

The several public entities are authorized to and shall make or approve the payments required by Section 305(2) of the Uniform Act for litigation expenses actually incurred by any person, family, business, farm operation, or nonprofit organization which is a condemnee in any condemnation proceeding brought by an acquiring public entity to acquire real property for a federal-aid project, the cost of which is now or hereafter financed in whole or in part from federal funds allocated to an acquiring public entity, if the final judgment is that the acquiring public entity cannot acquire the real property by condemnation or the condemnation proceeding is formally abandoned by the acquiring public entity.

(Ga. L. 1973, p. 512, § 6; Ga. L. 1989, p. 213, § 6.)

The 1989 amendment, effective March 30, 1989, substituted "Uniform Act" for "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, Ninety-first Congress, approved January 2, 1971," and deleted "public works" preceding "project".

JUDICIAL DECISIONS

This statutory authority for payment of litigation expenses is separate and apart from condemnation proceeding. City of Atlanta v. Rosebush, 146 Ga. App. 99 , 245 S.E.2d 440 (1978).

This Code section provides a remedy to recover attorney fees separate and apart from a condemnation proceeding where just and adequate compensation is at issue. DOT v. B & G Realty, Inc., 197 Ga. App. 613 , 398 S.E.2d 762 (1990).

This section does not require that entire project for which land is condemned be abandoned, but only that the condemnation proceeding be abandoned. Jackson v. Alford, 244 Ga. 125 , 259 S.E.2d 68 (1979).

Reasonable expenses incurred by defendants prior to receiving notice of dismissal are recoverable litigation expenses. Jackson v. Alford, 244 Ga. 125 , 259 S.E.2d 68 (1979).

Expenses of litigation, including attorney fees, must be paid by city, whether or not the city has established rules under § 22-4-11 for administering the payments; in the absence of such rules and regulations, mandamus is an appropriate means by which to compel the performance of city officials in compliance with this section. Jackson v. Alford, 244 Ga. 125 , 259 S.E.2d 68 (1979).

Cited in West v. Mayor of Atlanta, 248 Ga. 844 , 286 S.E.2d 299 (1982).

22-4-8. Payments by public entities for litigation expenses - Inverse condemnation proceedings.

The several public entities are authorized to and shall make or approve the payments required by Section 305(2) of the Uniform Act for litigation expenses actually incurred by any person, family, business, farm operation, or nonprofit organization which is the plaintiff in any inverse condemnation proceeding brought against an acquiring public entity in which judgment is rendered in favor of the plaintiff for real property taken by the acquiring public entity in its execution of any federal-aid project, the costs of which are now or hereafter financed in whole or in part from federal funds allocated to the acquiring public entity.

(Ga. L. 1973, p. 512, § 7; Ga. L. 1989, p. 213, § 7.)

The 1989 amendment, effective March 30, 1989, substituted "Uniform Act" for "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, Ninety-first Congress, approved January 2, 1971," and deleted "public works" preceding "project".

Law reviews. - For survey article on recent developments in Georgia law of remedies, see 34 Mercer L. Rev. 397 (1982).

JUDICIAL DECISIONS

No right of action for expenses against city. - Where condemnation was for purpose of acquiring land necessary for transit authority, fact that city institutes eminent domain proceedings in and of itself gives no right of action for expenses against the city under this section. Where the city is the legal condemnor, the transit authority, not the city, is the acquiring public entity for purposes of this section. West v. Mayor of Atlanta, 248 Ga. 844 , 286 S.E.2d 299 (1982).

Prerequisite to right to compensation. - Plaintiffs could not seek compensation under this section where they did not prevail in their inverse condemnation action. Benton v. Savannah Airport Comm'n, 241 Ga. App. 536 , 525 S.E.2d 383 (1999).

22-4-9. Policies guiding acquisition of real property for federal-aid projects.

In acquiring real property for any federal-aid project, the costs of which are financed in whole or in part from federal funds allocated to an acquiring public entity, such public entity shall be guided by the land acquisition policies required by Section 301 of the Uniform Act to the greatest extent practicable.

(Ga. L. 1973, p. 512, § 8; Ga. L. 1989, p. 213, § 8.)

The 1989 amendment, effective March 30, 1989, deleted "public works" preceding "project" near the beginning of the Code section, substituted "Section 301 of the Uniform Act to the greatest extent practicable." for "Section 305(1) of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, Ninety-first Congress, approved January 2, 1971, and shall, to the greatest extent practicable, be guided by the following policies:" near the end of the introductory language, and deleted paragraphs (1) through (9).

JUDICIAL DECISIONS

Paragraphs (7) and (8) should not be read as statutory authority for property owner to compel institution of condemnation proceedings by mandamus. Clifton v. Berry, 244 Ga. 78 , 259 S.E.2d 35 (1979).

No private right of action. - This section does not create a private right of action in favor of a landowner, but merely addresses policies that should guide state agencies when they acquire real property for federal-aid projects. Benton v. Savannah Airport Comm'n, 241 Ga. App. 536 , 525 S.E.2d 383 (1999).

Neither the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq., nor the Georgia Relocation Assistance and Land Acquisition Policy Act, O.C.G.A. § 22-4-1 et seq., gave condemnees whose land was subjected to an inadequately described temporary work easement a private right of action. Ga. 400 Indus. Park, Inc. v. DOT, 274 Ga. App. 153 , 616 S.E.2d 903 (2005).

22-4-10. Policies guiding acquisition of buildings, structures, and other improvements for federal-aid projects.

In acquiring property for any federal-aid project, the costs of which are financed in whole or in part from federal funds allocated to an acquiring public entity, the acquiring public entity shall be guided by the land acquisition policies relating to buildings, structures, and other improvements specified by Section (302) of the Uniform Act to the greatest extent practicable.

(Ga. L. 1973, p. 512, § 9; Ga. L. 1989, p. 213, § 9; Ga. L. 1990, p. 8, § 22.)

The 1989 amendment, effective March 30, 1989, deleted "public works" preceding "project" near the beginning of the introductory language, substituted "Section (302) of the Uniform Act to the greatest extent practicable." for "Section 305(1) of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, Ninety-first Congress, approved January 2, 1971, and shall, to the greatest extent practicable, be guided by the following policies:" at the end of the introductory language, and deleted paragraphs (1) through (3).

The 1990 amendment, effective February 16, 1990, part of an Act to correct errors and omissions in the Code, revised punctuation in this Code section.

22-4-11. Adoption of rules by state, public agencies, etc.; appeal and review.

  1. The several public entities are authorized to make such rules as may be necessary to provide for the administration of the financial assistance authorized by this chapter.
  2. The determination by the several public entities of the amount of any payment and to whom it shall be paid may be appealed and judicially reviewed in the manner prescribed by Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

    (Ga. L. 1973, p. 512, § 11.)

JUDICIAL DECISIONS

Judicial review provided by Ch. 13, T. 50 is applicable to "several public entities" as defined by § 22-4-2 as well as to those entities defined as an "agency" by § 50-13-2(1) . Wirt v. Metropolitan Atlanta Rapid Transit Auth., 139 Ga. App. 592 , 229 S.E.2d 100 (1976).

And amendments to definition of "agency" will not influence such applicability. - "Several public entities" and the "agency" being alternative categories, amendments to the definition of "agency" will not influence the applicability of Ch. 13, T. 50 to an entity which falls within the "several public entities" category. Wirt v. Metropolitan Atlanta Rapid Transit Auth., 139 Ga. App. 592 , 229 S.E.2d 100 (1976).

Expenses of litigation, including attorney fees, must be paid by city, whether or not the city has established rules under this section for administering the payments; in the absence of such rules and regulations, mandamus is an appropriate means by which to compel the performance of city officials in compliance with § 22-4-6 . Jackson v. Alford, 244 Ga. 125 , 259 S.E.2d 68 (1979).

Cited in City of Atlanta v. Rosebush, 146 Ga. App. 99 , 245 S.E.2d 440 (1978); Metropolitan Atlanta Rapid Transit Auth. v. Wallace, 243 Ga. 491 , 254 S.E.2d 822 (1979).

22-4-11.1. Exercise of powers granted under this chapter by municipal corporations with population of 350,000 or more; effect of this Code section on other laws.

  1. In addition and supplementary to other powers provided by this chapter for the several public entities, any municipal corporation having a population of 350,000 or more according to the United States decennial census of 1970 or any future such census may exercise the powers provided by this chapter for public works projects which are not financed in whole or in part from federal funds, but which are financed wholly or in part from the funds of any such municipal corporation or from other nonfederal funding sources, if the governing authority of any such municipal corporation shall first pass an ordinance or resolution stipulating that such funds are to be spent in good faith anticipation of whole or partial reimbursement from federal funds. The costs incurred by any such municipal corporation pursuant to the authority provided by this Code section shall be a part of the costs of public works projects. In carrying out the powers granted under this Code section any such municipal corporation shall be authorized to:
    1. Provide all relocation assistance and payments as authorized by this chapter;
    2. Establish and implement all acquisition policies and practices authorized under this chapter; and
    3. Provide for reimbursement of all necessary expenses authorized under this chapter.
  2. This Code section shall not be construed to repeal or affect in any manner Code Section 32-8-1, relating to relocation assistance for persons displaced by federal-aid highway projects.

    (Ga. L. 1981, p. 1417, §§ 1, 2; Ga. L. 1991, p. 307, § 1.)

The 1991 amendment, effective April 4, 1991, substituted "350,000" for "400,000" near the beginning of subsection (a).

Editor's notes. - Ga. L. 1991, p. 307, § 2, not codified by the General Assembly, provides for the repeal of Ga. L. 1981, p. 1417.

22-4-12. Functions provided in chapter as public purposes; effect of chapter on power of state, public agencies, etc., to tax.

  1. The providing of all of the relocation assistances and payments described in this chapter and, in connection with the acquisition of real property for public works projects or programs, the establishing of all of the policies and practices described in this chapter, and the paying or reimbursing of all of the expenses described in this chapter are declared to be necessary and shall and do constitute governmental functions undertaken for public purposes. Therefore, public funds may be expended by said public entities in furtherance of such functions, and those public entities that possess the power of taxation in relation to the public works projects and programs referred to in this subsection may exercise such power in furtherance thereof.
  2. Nothing contained in this Code section should be construed as a grant of a power of taxation to any of the several public entities which do not possess, independently of this chapter, any powers of taxation. Rather, this Code section shall constitute a grant of the power of taxation in relation to the public purposes enumerated in subsection (a) of this Code section to such of the several public entities as possess, independently of this chapter, powers of taxation in relation to the particular public works project or program which is undertaken or sponsored by such public entity and which displaces a person, thereby giving rise to the necessity of relocation assistance and payments, or which requires the acquisition of real property, thereby necessitating the real property acquisition policies, practices, payments, and reimbursements described in this chapter.

    (Ga. L. 1973, p. 512, § 12.)

22-4-13. Payments under chapter as income or resources.

No payment received by a displaced person under this chapter shall be considered as income or resources for the purpose of determining the eligibility or extent of eligibility of any person for assistance under any state law or for the purposes of the state's personal income tax law, corporation tax law, or other tax laws. These payments shall not be considered as income or resources of any recipient of public assistance, and the payment shall not be deducted from the amount of aid to which the recipient would otherwise be entitled.

(Ga. L. 1973, p. 512, § 13.)

22-4-14. Effect of chapter on condemnation proceedings.

Nothing contained in this chapter shall be construed as creating in any condemnation proceeding brought under the power of eminent domain any element of value or of damage.

(Ga. L. 1973, p. 512, § 10.)

JUDICIAL DECISIONS

Georgia jurisprudence will set measure of damages for property condemned in Georgia under this chapter. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417 , 219 S.E.2d 707 (1975).

Cited in United Family Life Ins. Co. v. DeKalb County, 136 Ga. App. 822 , 222 S.E.2d 664 (1975); DOT v. Doss, 238 Ga. 480 , 233 S.E.2d 144 (1977); City of Atlanta v. Rosebush, 146 Ga. App. 99 , 245 S.E.2d 440 (1978).

RESEARCH REFERENCES

ALR. - Compensation for interest prepayment penalty in eminent domain proceedings, 84 A.L.R.3d 946.

22-4-15. Authority of public entities to provide replacement housing when federal-aid project cannot proceed to actual construction.

The several public entities shall have the authority, as a last resort, to provide replacement housing when a federal-aid project financed in whole or in part with federal aid cannot proceed to actual construction because no comparable replacement sale or rental housing is available. In carrying out the relocation assistance activities, the several public entities shall be authorized to make payments, construct or reconstruct with their own forces, cause to be constructed or reconstructed, and purchase by deed or condemnation any real property for the purposes of providing replacement housing. The acquiring public entity may exchange, lease, or sell to the displaced person such replacement housing. Whenever any real property has been acquired under this Code section and thereafter the acquiring public entity determines that all or any part of such property or any interest therein is no longer needed for such purposes because of changed conditions, the acquiring public entity is authorized to dispose of such property or interest therein in accordance with Code Section 50-16-144.

(Code 1981, § 22-4-15 , enacted by Ga. L. 1989, p. 213, § 10.)

Effective date. - This Code section became effective March 30, 1989.