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).

No bad faith shown on part of county. - Record supported that the condemnation of the buffer property would serve a public purpose and that the county did not act in bad faith because failing to disclose the extent of methane migration provided no financial benefit for the county since at no time did the county discount the price the county was offering the property owner for the buffer property due to ignorance of the status of methane migration. Morgan County v. Gay, 352 Ga. App. 555 , 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

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 .

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 when the state takes for the state's own purposes. State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964).

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 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 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. - When 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. - After the Department of Transportation informed a corporation in the spring of 1981 that a building leased by the corporation 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 the corporation's 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, the corporation's decision to move in August 1982 was by voluntary choice, and could not be attributed to an interference by the department with the corporation's 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. - Legislature has the power to authorize a municipal corporation to acquire lands beyond the municipal limits and for that purpose to exercise the power of eminent domain when 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 et seq., 44 et seq.

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 et seq., 27 et seq.

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.

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 when the state takes for the state's own purposes. State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964).

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 former Code 1933, § 36-102 (see O.C.G.A. § 22-1-3 ) as former Code 1933, §§ 36-801 and 85-1306 (see O.C.G.A. §§ 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 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, 23 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 1 et seq., 23 et seq.

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.

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 when the state takes for the state's own purposes. State Hwy. Dep't v. Smith, 219 Ga. 800 , 136 S.E.2d 334 (1964).

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 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. - 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 when 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, 21 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 1 et seq., 23 et seq.

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.

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 the owner's 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).

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 when 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 the owner designs to use the property 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" when fair market value will not afford just and adequate compensation when the properties 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 the 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 the owner's property. Decatur County v. Settles, 107 Ga. App. 150 , 129 S.E.2d 212 (1962).

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).

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), aff'd in part and rev'd in part, 302 Ga. 645 , 807 S.E.2d 324 (2017).

Cessation of work on project after notifying property owner of possible condemnation. - After the Department of Transportation informed a corporation in the spring of 1981 that a building leased by the corporation 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 the corporation's 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, the corporation's decision to move in August 1982, was by voluntary choice, and could not be attributed to an interference by the department with the corporation's 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 the owner, not the property's value to the state. 1958-59 Op. Att'y Gen. p. 271.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, § 112 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 90 et seq.

C.J.S. - 25 C.J.S., Damages, § 1 et seq. 29A C.J.S., Eminent Domain, § 66 et seq.

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.

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.

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

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

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" was limited by former Civil Code 1910, § 5233 (see O.C.G.A. § 22-2-85 ) and did 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), aff'd in part and rev'd in part, 302 Ga. 645 , 807 S.E.2d 324 (2017).

Burden to show 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. - When property is taken under power of eminent domain for a public use, the property's 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).

Former Code 1933, §§ 36-302 and 36-303 (see O.C.G.A. §§ 22-1-6 and 22-1-7 ) required negotiation between the condemnor and condemnee and a failure to agree before condemnation proceedings could 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).

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).

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 the landowner 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 the executor's 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 the owner's 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 the owner 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 the 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.

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 the owner, not the property's 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, § 112 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 90 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 57 et seq., 66 et seq.

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.

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 the owner's 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).

Former Code 1933, §§ 36-302 and 36-303 (see O.C.G.A. §§ 22-1-6 and 22-1-7 ) required negotiation between the condemnor and condemnee and a failure to agree before condemnation proceedings could 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. - 26 Am. Jur. 2d, Eminent Domain, § 112 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 90 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 66 et seq, 206 et seq.

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.

JUDICIAL DECISIONS

Second application for condemnation. - When 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 when it is shown that the plaintiff 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 when property has been appropriated or damaged by the erection and maintenance of a public improvement that the owner can recover upon the theory that the owner's 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. - When the 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 former Code 1933, §§ 36-301, 36-502, and 36-503 (see O.C.G.A. §§ 22-1-8 and 22-2-61 ) which taken alone did 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. - 25 C.J.S., Damages, § 1 et seq.

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).

Public necessity established. - Record was sufficient to sustain the county's decision to condemn the buffer zone because a public use was established as the county set forth the county's method of isolating methane-contaminated land to county-owned property based on the county's expert testifying that acquiring the buffer zone would eliminate any reasonable probability that methane would migrate onto property owned by the property owner. Morgan County v. Gay, 352 Ga. App. 555 , 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

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), aff'd in part and rev'd in part, 302 Ga. 645 , 807 S.E.2d 324 (2017).

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), aff'd in part and rev'd in part, 302 Ga. 645 , 807 S.E.2d 324 (2017).

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 ten 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).

Public necessity established for condemnation. - Record supported that the condemnation of the buffer property would serve a public purpose and that the county did not act in bad faith because failing to disclose the extent of methane migration provided no financial benefit for the county since at no time did the county discount the price the county was offering the property owner for the buffer property due to ignorance of the status of methane migration. Morgan County v. Gay, 352 Ga. App. 555 , 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

County reset statutory compliance time period. - Trial court did not err by refusing to dismiss the condemnation petition and not awarding attorney fees to the property owner because while the county violated statutory procedure by failing to obtain an appraisal report prior to initiating negotiations, the discussions had ceased and the county reset the county's opportunity to statutorily comply by obtaining an appraisal and promptly providing the appraisal to the property owner along with an offer to purchase the property at the appraised amount. Morgan County v. Gay, 352 Ga. App. 555 , 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

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).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 23 et seq., 30 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 22 et seq., 57 et seq., 250 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, § 780 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 306 et seq.

JUDICIAL DECISIONS

Dismissal of action as nonjusticiable upheld. - Because the city had yet to file a condemnation action against a landowner, the 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 § 22-1-11 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).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 17 et seq., 42 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 22 et seq.

JUDICIAL DECISIONS

Cited in City of Marietta v. Summerour, 302 Ga. 645 , 807 S.E.2d 324 (2017); Morgan County v. Gay, 352 Ga. App. 555 , 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 112 et seq., 182 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 550 et seq.

JUDICIAL DECISIONS

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

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, § 805 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 181 et seq.

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).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, § 223 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 141 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, § 44 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 250 et seq.

ALR. - Measure of Just Compensation in Taking of Wetland, 40 A.L.R.7th Art. 7

Nondisclosure or Confidentiality Agreements in Cases Involving Products Liability, 40 A.L.R.7th Art. 2

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.

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 O.C.G.A. T. 22, C. 2, Art. 1 is limited to "private property" as indicated by the original enacting Act (Ga. L. 1894, p. 95) and by operation of O.C.G.A. § 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 former Code 1933, § 36-801 (see O.C.G.A. § 22-3-20 ) for the purpose of erecting an electric line with necessary poles and fixtures, it was 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 was 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 former Code 1933, §§ 36-304, 36-311, 36-312, 36-313, 36-401 (see O.C.G.A. §§ 22-2-20 , 22-2-25 , 22-2-26 , and 22-2-41 ), the landowner had until the day fixed for the hearing in the notice in which to appoint an assessor, which hearing shall not be less than 15 days from the time of serving the notice. A different ruling was 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 when owner not named or served. - When 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, when 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 one's 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, § 433 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 250 et seq., 270 et seq.

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 .

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

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

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.

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

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

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 .

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, §§ 1 et seq., 32 et seq.

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

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, §§ 81 et seq., 100 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.

JUDICIAL DECISIONS

Assessor to be appointed by hearing date fixed in notice. - Construing together former Code 1933, §§ 36-304, 36-311, 36-312, 36-313, 36-401 (see O.C.G.A. §§ 22-2-20 , 22-2-25 , 22-2-26 , and 22-2-41 ), the landowner had until the day fixed for the hearing in the notice in which to appoint an assessor, which hearing shall not be less than 15 days from the time of serving the notice. A different ruling was 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, § 433 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 306 et seq. 72 C.J.S., Process, §§ 31 et seq., 32 et seq.

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

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 former Code 1933, § 36-801 (see O.C.G.A. § 22-3-20 ), for the purpose of erecting an electric line with necessary poles and fixtures, it was 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 was 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 former Code 1933, §§ 36-304, 36-311, 36-312, 36-313, 36-401 (see O.C.G.A. §§ 22-2-20 , 22-2-25 , 22-2-26 , and 22-2-41 ), the landowner had until the day fixed for the hearing in the notice in which to appoint an assessor, which hearing shall not be less than 15 days from the time of serving the notice. A different ruling was 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, § 433 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 306 et seq. 72 C.J.S., Process, §§ 1 et seq., 32 et seq.

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 former Code 1933, §§ 36-304, 36-311, 36-312, 36-313, 36-401 (see O.C.G.A. §§ 22-2-20 , 22-2-25 , 22-2-26 , and 22-2-41 ), the landowner had until the day fixed for the hearing in the notice in which to appoint an assessor, which hearing shall not be less than 15 days from the time of serving the notice. A different ruling was 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. - 29A C.J.S., Eminent Domain, § 389 et seq.

JUDICIAL DECISIONS

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

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).

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. - 29A C.J.S., Eminent Domain, §§ 250 et seq., 335 et seq.

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, §§ 409 et seq., 433 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 409 et seq.

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

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Value of Property Taken
  • 1. In General
  • 2. Value for All Purposes
  • 3. Unique Property
  • 4. Comparable Sales and Offers of Purchase
• Prospective and Consequential Damages

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.

Damages 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 the landowner, 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 the property is taken. 1958-59 Op. Att'y Gen. p. 271.

Moving cost 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.

When 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 when a condemnation causes the intersection of a building by the line drawn between the land taken and the land not taken, if 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. - 27 Am. Jur. 2d, Eminent Domain, § 516 et seq.

C.J.S. - 25 C.J.S., Damages, § 1 et seq. 29A C.J.S., Eminent Domain, §§ 282 et seq., 346 et seq.

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.

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.

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.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Value of Property Taken
• Prospective and Consequential Damages

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 the landowner, 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.

When 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 the building's full value. 1958-59 Op. Att'y Gen. p. 273.

When a condemnation causes the intersection of a building by the line drawn between the land taken and the land not taken, when 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, § 1 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, §§ 122 et seq., 178 et seq.

C.J.S. - 25 C.J.S., Damages, § 1 et seq. 29A C.J.S., Eminent Domain, §§ 66 et seq., 250 et seq.

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.

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.

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.

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. - When the procedure was proper in submitting to the jury a form similar to the finding of assessors under former Code 1933, §§ 36-504 and 36-507 (see O.C.G.A. §§ 22-2-63 and 22-2-64 ), and there was no exception to such procedure, the jury, like the appraisers, had the right under § 36-504, 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, § 548 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 389 et seq.

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 award 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. - 29A C.J.S., Eminent Domain, § 512 et seq.

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.

JUDICIAL DECISIONS

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 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).

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).

See Nodvin v. DeKalb County, 158 Ga. App. 819 , 282 S.E.2d 410 (1981).

Appeal 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 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. - When 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 the jurors hear testimony, and the jury's 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 one insofar as it affects one's right to pursue one's 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. - When 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. - When an appeal is taken from an award of assessors to the superior court, the condemnor shall not be allowed to withdraw an appeal after the appeal 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).

Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112 ) was copied verbatim from former Code 1933, § 36-601 (see O.C.G.A. § 22-2-80 ) and consequently had the same meaning. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112 ) dealing with an appeal from the award of the special master, and former Code 1933, § 36-601 (see O.C.G.A. § 22-2-80 ) dealing with appeals from awards of assessors in eminent domain cases, were 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 the Civil Practice Act. - Notwithstanding a provision in an agreement submitting issues to arbitration under the Civil Practice Act, 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 the Civil Practice Act. 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).

When 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. - When 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).

When 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 the owner 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, Appellate Review, § 189. 27 Am. Jur. 2d, Eminent Domain, § 573 et seq.

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.

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, § 573 et seq.

ALR. - Eminent domain: payment or deposit of award in court as affecting condemnor's right to appeal, 40 A.L.R.3d 203.

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 when the plaintiff has an available remedy at law. 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. - When 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. - When 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 seven 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, Appellate Review, § 75 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 613.

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.

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).

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 former Code 1933, §§ 3-607, 3-608 (see O.C.G.A. § 9-2-44(a) ), have been pled 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 proceedings. 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. - 29A C.J.S., Eminent Domain, § 512 et seq.

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 the clerk, 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 the clerk - 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. - When a magistrate refuses to dismiss an appeal because costs have not been paid by the appellant, this amounts to a waiver of the appellant's 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

C.J.S. - 29A C.J.S., Eminent Domain, § 550 et seq.

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.

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, when the fee remains in the owner, the owner 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, the owner's 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 former Civil Code 1910, § 5207 (see O.C.G.A. § 22-1-6 ) was limited by former Civil Code 1910, § 5233 (see O.C.G.A. § 22-2-85 ), so that it was 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 the owner's interest in that 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, 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 the transferee, even though one 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, § 771 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 5 et seq., 623 et seq.

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.

RESEARCH REFERENCES

ALR. - Personal liability of purchaser of property subject to chattel mortgage, to the mortgagee, 100 A.L.R. 1038 .

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).

Ga. L. 1957, p. 387, § 1 et seq. 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 Ga. L. 1957, p. 387, § 1 et seq. 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).

No bad faith shown on part of county in condemnation. - Record supported that the condemnation of the buffer property would serve a public purpose and that the county did not act in bad faith because failing to disclose the extent of methane migration provided no financial benefit for the county since at no time did the county discount the price the county was offering the property owner for the buffer property due to ignorance of the status of methane migration. Morgan County v. Gay, 352 Ga. App. 555 , 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

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).

JUDICIAL DECISIONS

Purpose of Ga. L. 1957, p. 387, § 1 et seq. is to provide an effective method of condemnation when 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 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 the citizen's 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).

Ga. L. 1957, p. 387, § 1 et seq. 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 the citizen's 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).

JUDICIAL DECISIONS

Procedure satisfies due process. - Ga. L. 1957, p. 387, § 5 (see O.C.G.A. § 22-2-102 ) supplemented by Ga. L. 1957, p. 387, §§ 10 and 11 (see O.C.G.A. §§ 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).

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 the citizen's 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 the master's 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 O.C.G.A. § 22-2-102 . 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 Ga. L. 1957, p. 387, § 1 et seq., 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).

Broad discretion as to selection of property. - 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 Ga. L. 1957, p. 387, § 1 et seq. 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. - When 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 the 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, §§ 365 et seq., 416 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 250 et seq.

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

JUDICIAL DECISIONS

Authority of special master. - The provision in O.C.G.A. § 22-2-102.1 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).

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).

RESEARCH REFERENCES

C.J.S. - 29A C.J.S., Eminent Domain, § 250 et seq.

JUDICIAL DECISIONS

Special master is officer of court. - The original arbiter is no longer merely a person especially equipped to determine value; the arbiter is a competent attorney under oath especially appointed by the court. The arbiter is, accordingly, an arm of the court, and the arbiter's 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 was that of an auditor, a special master was not obligated by Ga. L. 1957, p. 387, § 6 (see O.C.G.A. § 22-2-103 ) to render a report in the manner prescribed in former Code 1933, § 10-203 (see O.C.G.A. § 9-7-8 ) containing the special master's 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 since 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.

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. - 29A C.J.S., Eminent Domain, §§ 250 et seq., 469 et seq.

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.

JUDICIAL DECISIONS

Procedure satisfies due process. - Ga. L. 1957, p. 387, § 5 (see O.C.G.A. § 22-2-102 ) supplemented by Ga. L. 1957, p. 387, §§ 10 and 11 (see O.C.G.A. §§ 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).

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. - Judgment of superior court on master's report is final judgment not subject to readjudication in the superior court; but being a final judgment, is appealable, if at all, directly to the appellate courts under the provisions of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34 ) by bill of exceptions on the record made before the special master; if it was not so appealable there was a hiatus in the law which it is the duty of the General Assembly 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 Ga. L. 1957, p. 387, §§ 10 and 12 (see O.C.G.A. §§ 22-2-107 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 when notice of condemnation insufficient. - The trial court has discretion at the term at which the judgment disbursing funds is entered to vacate the order and reopen the case when it is shown to the court's satisfaction that the claimant 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. - Since the appellants participated in the special master hearing on the date that it was held, the appellants 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, § 433 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 306 et seq., 512 et seq., 521 et seq. 72 C.J.S., Process, §§ 1 et seq., 32 et seq.

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.

JUDICIAL DECISIONS

Procedure satisfies due process. - Ga. L. 1957, p. 387, § 5 (see O.C.G.A. § 22-2-102 ) supplemented by Ga. L. 1957, p. 387, §§ 10 and 11 (see O.C.G.A. §§ 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).

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. - When 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 when procedural provisions incomplete. - When wording is taken from a prior statute, or when Ga. L. 1957, p. 387, § 1 et seq. 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 when 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. - O.C.G.A. § 22-2-108 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 when the condemnor failed to abide by the clear language of the statutory method the condemnor elected to follow, and the record was clear that condemnees at no time acquiesced in or waived strict compliance with § 22-2-108 , the trial court erred by not declaring the hearing of the special master void for violation of § 22-2-108. 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 O.C.G.A. § 22-2-108 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; the special master's 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 the landowner, 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

C.J.S. - 29A C.J.S., Eminent Domain, § 389 et seq.

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.

JUDICIAL DECISIONS

Cited in Morgan County v. Gay, 352 Ga. App. 555 , 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

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" when 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 the lessee's 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. - When 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 not 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 to recover as the actual value of the condemnee's 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, when 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).

Jury cannot 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 the witness's examination of the property had been made both before and after the date of taking, this does not prevent the witness's testimony from having probative value as to the date of taking when the witness testifies as to the witness's familiarity with the property as of the date of taking. The witness's 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 when, 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. - When 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. - When 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, § 112 et seq. 27 Am. Jur. 2d, Eminent Domain, §§ 433 et seq, 440, 485.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 90 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 346 et seq., 380 et seq.

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.

JUDICIAL DECISIONS

Adequate method for determining compensation. - The General Assembly, by enacting Ga. L. 1957, p. 387, §§ 5, 11, and 14 (see O.C.G.A. §§ 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 Ga. L. 1957, p. 387, § 12 (see O.C.G.A. § 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).

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 O.C.G.A. § 22-2-110 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 Ga. L. 1957, p. 387, §§ 10 and 12 (see O.C.G.A. §§ 22-2-107 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).

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) of O.C.G.A. § 22-2-110 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 the master's 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 when 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 O.C.G.A. §§ 9-15-4 and 15-6-77 if the appellants have properly paid the required costs for filing the initial condemnation petition. 1985 Op. Att'y Gen. No. U85-17.

RESEARCH REFERENCES

C.J.S. - 29A C.J.S., Eminent Domain, § 389 et seq.

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.

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. - O.C.G.A. § 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 O.C.G.A. § 22-2-112 , and since an amendment to alter the quantum of the property taken is not permissible after title vests, the county could not correct the county's mistake that caused the county to condemn the wrong property either by amendment or by dismissing the county's 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).

JUDICIAL DECISIONS

This section provides for appeal from award of master to superior court when 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, 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 the judge. 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 when the judge determined that the judge 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).

Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112 ) was copied from former Code 1933, § 36-601 (see O.C.G.A. § 22-2-80 ) and consequently had the same meaning. Johnson v. Fulton County, 103 Ga. App. 873 , 121 S.E.2d 54 (1961).

Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112 ) and former Code 1933, § 36-601 (see O.C.G.A. § 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 ten days in which to file exception to value issues under O.C.G.A. § 22-2-112 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 when condemnee fails to follow procedure for making objections known. - When the condemnee fails to follow the procedure required by law in condemnation in rem proceedings before a special master in seeking to have the condemnee's 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. - O.C.G.A. § 22-2-112 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).

Former Code 1933, § 6-102 (see O.C.G.A. § 5-3-20 ) did not extend time for filing notice of appeal specified in Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112 ). 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 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 O.C.G.A. §§ 22-2-112 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 when 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 O.C.G.A. § 22-2-112 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. - When an appeal to a jury as to value was pending, the judgment of condemnation under the special master's condemnation procedure was not a final judgment subject to review in the absence of a certificate as provided for by former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34 ). City of Atlanta v. Turner Adv. Co., 234 Ga. 1 , 214 S.E.2d 501 (1975).

When 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).

Just and adequate compensation does not necessarily restrict recovery to market value when, 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 the land is suitable or the land is adapted. State Hwy. Dep't v. Stewart, 104 Ga. App. 178 , 121 S.E.2d 278 (1961).

No bad faith shown on part of county. - Record supported that the condemnation of the buffer property would serve a public purpose and that the county did not act in bad faith because failing to disclose the extent of methane migration provided no financial benefit for the county since at no time did the county discount the price the county was offering the property owner for the buffer property due to ignorance of the status of methane migration. Morgan County v. Gay, 352 Ga. App. 555 , 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

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. - When, 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).

When 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, the owner's earlier demand for jury trial, filed before a special master award existed, did not qualify as a timely appeal to the jury, and inasmuch as no appeal to the 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 ten day period to file an appeal from the date an award is filed with the superior court, and an appeal not filed within that ten 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. - When a proceeding in rem is brought to condemn property for a public use, 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 when appeal results in lower award. - When 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 when 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 the condemnation award, to the clerk of the superior court is not payment of such amount into the registry of the court when 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).

When 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, Appellate Review, §§ 77 et seq., 189. 26 Am. Jur. 2d, Eminent Domain, §§ 6, 112 et seq. 27 Am. Jur. 2d, Eminent Domain, §§ 485 et seq., 637, 869 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 396 et seq.

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.

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 one's 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) of O.C.G.A. § 22-2-113 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 General Assembly 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) of O.C.G.A. § 22-2-113 were not applicable when 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 pled 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. - When 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 seven percent. - The 12 percent rate of O.C.G.A. § 7-4-12 applies only to judgments; any interest accruing under O.C.G.A. § 22-2-113 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 seven 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. - When a proceeding in rem is brought to condemn property for a public use, 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 when 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 when 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, Appellate Review, § 75 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 389 et seq.

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.

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 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).

Burden is on one claiming entitlement to part of proceeds to make one's 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. 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 one 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, § 548 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 550 et seq.

JUDICIAL DECISIONS

Statute to be strictly construed. - In a statutory proceeding, when 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).

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).

Ga. L. 1914, p. 92, § 1 et seq. 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 Ga. L. 1914, p. 92, § 1 et seq. 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).

When 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 the plaintiff's property without public need and without the funds to pay for the property presented a threat of irreparable harm to the plaintiff in the future, was not cognizable under Georgia law because a separate equitable petition to enjoin a condemnation governed by O.C.G.A § 22-2-130 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, when 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 when 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).

When 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, §§ 548 et seq., 563 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, §§ 2 et seq., 30 et seq.

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 .

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).

When 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, § 416 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, §§ 2 et seq., 6 et seq., 30 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 250 et seq., 317 et seq.

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 condemnation act of 1914 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, §§ 409 et seq., 433 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, §§ 2 et seq., 6 et seq., 241 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 306 et seq. 72 C.J.S., Process, §§ 1 et seq., 32 et seq.

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, § 433 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, §§ 2 et seq., 6 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 306 et seq. 72 C.J.S., Process, §§ 1 et seq., 32 et seq.

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, §§ 2 et seq., 6 et seq.

C.J.S. - 72 C.J.S., Process, §§ 1 et seq., 32 et seq.

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.

Prerequisite to appealing 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, §§ 486 et seq., 492 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, §§ 2 et seq., 178 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 396 et seq.

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.

JUDICIAL DECISIONS

Appeal from condemnation award 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 was not a suit within the provisions of former Code 1933, § 85-1802 (see O.C.G.A. § 44-12-21 ). State Hwy. Dep't v. Noble, 220 Ga. 410 , 139 S.E.2d 318 (1964).

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 the clerk, 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 the clerk - 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. - When a magistrate refuses to dismiss an appeal because costs have not been paid by the appellant, this amounts to a waiver of the 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 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. - When 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. - 27 Am. Jur. 2d, Eminent Domain, § 573 et seq.

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.

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" when 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 one's 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. - When 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 when 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. - When an owner's property would probably be rezoned, the trial court did not abuse the court's 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, §§ 112 et seq., 233 et seq.

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, § 90 et seq.

C.J.S. - 25 C.J.S., Damages, § 1 et seq.

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.

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).

When 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 when, 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, §§ 548 et seq., 563 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 90 et seq.

ALR. - Quotient condemnation report or award by commissioners or the like, 39 A.L.R.2d 1208.

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, was afforded any person aggrieved by a condemnation proceeding brought under former Code 1933, § 36-1104 et seq. (see O.C.G.A. § 22-2-130 et seq.) which permitted 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 was proceeding. Mitchell v. State Hwy. Dep't, 216 Ga. 517 , 118 S.E.2d 88 (1961).

When condemnor pays award of assessors into registry of court, 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 the plaintiff's capacity as executor, should have been served with notice of condemnation proceeding, the fact that the plaintiff was served as one of eight "owners" of the land with notice gave the plaintiff knowledge of the proceeding, and the plaintiff 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, the plaintiff was in no way harmed by reason of the condemnor's failure to give the plaintiff official notice in the plaintiff's 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 when the city 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 since the newly discovered deeds showed the city had an interest in the property, and since 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, § 414.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 241 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 255 et seq.

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

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.

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.

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 .

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. - 27 Am. Jur. 2d, Eminent Domain, § 433 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 306 et seq.

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.

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, § 433 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 306 et seq.

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

RESEARCH REFERENCES

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

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 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 former Civil Code 1895, § 4678 (see O.C.G.A. § 22-2-80 ) was permitted in a proceeding under Ga. L. 1898, p. 54, § 1 et seq. (see O.C.G.A. § 22-3-1 et seq.). 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, §§ 516 et seq., 520 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 335 et seq.

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.

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).

Civil Code 1910, § 5240 (see O.C.G.A. § 22-3-20 ) did not conflict with former Civil Code 1910, § 3633 (see O.C.G.A. § 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 land 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 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).

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 the landowner's 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 the plaintiff's 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, §§ 144 et seq., 290 et seq., 306 et seq.

25 Am. Jur. Pleading and Practice Forms, Waterworks and Water Companies, § 2.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 27 et seq., 117 et seq. 73 C.J.S., Public Utilities, §§ 151 et seq., 277 et seq.

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.

RESEARCH REFERENCES

C.J.S. - 29A C.J.S., Eminent Domain, §§ 66 et seq., 206 et seq.

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.

JUDICIAL DECISIONS

Protection accorded to mills and factories 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).

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. - 29A C.J.S., Eminent Domain, § 51 et seq.

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.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, § 297 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 100 et seq.

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.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 433 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 57 et seq., 306 et seq.

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.

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, Appellate Review, § 75 et seq. 27 Am. Jur. 2d, Eminent Domain, § 573 et seq.

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.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, §§ 573 et seq., 586 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 67 et seq, 297 et seq. 27 Am. Jur. 2d, Eminent Domain, § 790.

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.

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 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, § 54 et seq. 78 Am. Jur. 2d, Waterworks and Water Companies, §§ 7 et seq., 14 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 27 et seq., 94 et seq. 73 C.J.S., Public Utilities, §§ 151 et seq., 277 et seq.

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.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 370 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 250 et seq.

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.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 63, 66. 27 Am. Jur. 2d, Eminent Domain, §§ 306 et seq., 314 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 27 et seq., 35 et seq.

RESEARCH REFERENCES

C.J.S. - 29A C.J.S., Eminent Domain, § 94 et seq.

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).

When 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).

Title to condemned property does not revert to original owner. - When 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 when 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 when 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 was not necessary for the agency bringing condemnation proceedings to place any appraised amount in trust prior to a court ruling; however, if assessors were appointed as provided in former Code 1933, § 36-1109 (see O.C.G.A. § 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 refused 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, §§ 5, 23 et seq., 112 et seq. 50 Am. Jur. 2d, Levees and Flood Control, § 2 et seq.

C.J.S. - 28A C.J.S., Easements, §§ 9 et seq., 123 et seq. 29A C.J.S., Eminent Domain, §§ 5 et seq., 22 et seq., 57 et seq.

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.

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.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 144 et seq., 290 et seq. 27 Am. Jur. 2d, Eminent Domain, § 316 et seq.

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, § 87 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, § 27 et seq.

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.

RESEARCH REFERENCES

Am. Jur. 2d. - 52 Am. Jur. 2d, Logs and Timber, § 1 et seq.

C.J.S. - 54 C.J.S., Logs and Logging, § 1 et seq.

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.

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 112 et seq., 281 et seq.

C.J.S. - 54 C.J.S., Logs and Logging, § 1 et seq.

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.