TITLE 22 EMINENT DOMAIN

Section 2. Condemnation Procedure Generally, 22-2-1 through 22-2-142.

ARTICLE 2 PROCEEDING BEFORE SPECIAL MASTER

22-2-107. Service of process; award by special master and judgment of court conclusive as to right of condemnor to take or damage property or interest.

Copies of the petition, together with the order of the court provided for in Code Section 22-2-102, shall in all cases be served upon the person in possession of the property or interest sought to be condemned and upon all persons who are known to have any rights in such property or interest.
The return of service signed by the sheriff or his lawful deputy, or an affidavit of service executed by any citizen of this state, reciting that a copy of the petition and order was served upon the named condemnee in person or by leaving a copy at the place of his residence, shall be sufficient evidence as to the service of the named condemnee. It shall be the duty of the sheriff or citizen, as the case may be, to cause service to be made within three days from the date of the order of the judge on the petition.
If any of the condemnees or other persons known to have any rights in the property or interest reside outside of the county, the judge shall order service to be made upon such party or parties. Such service shall be perfected by causing a copy of the petition and order to be served upon the party or parties by the sheriff or any lawful deputy of the county of the residence of the party or parties. In addition, service may be made by any citizen. The return of such sheriff or lawful deputy, or the affidavit of such citizen that the party or parties were served, either in person or by leaving a copy of the petition and order at the residence, shall be conclusive as to service.
The sheriff or any lawful deputy of the county where the petition is filed shall serve nonresidents of this state:
1. By posting a copy of the petition, together with the order of the judge thereon, on the bulletin board at the courthouse door of the county in which the property or interest sought to be condemned is located for not less than five days prior to the time of the hearing before the special master;
2. By the insertion of a notice identifying the property or interest sought to be condemned, as well as the date and place of the hearing before the special master, in a newspaper having general circulation in the county wherein such property or interest is located, for one issue of said paper, the date of which shall be not less than four nor more than seven days prior to the hearing before the special master, and which is the same newspaper in which the sheriff's advertisements are carried; and
3. Where the address of such nonresidents is known, by mailing to them by registered or certified mail or statutory overnight delivery a copy of the petition and order.
If any of the persons entitled to service under this Code section are minors, or insane persons, or persons otherwise laboring under disabilities, the guardian of such persons shall be served. If the guardian resides outside of the county or is a nonresident, he or she shall be served as provided in subsections (c) and (d) of this Code section. If such minor or other person laboring under disabilities has no guardian, service shall be perfected by serving the disabled person personally or, in the event the disabled person lives outside of the county or is a nonresident, by serving the disabled person by the method provided in subsections (c) and (d) of this Code section for other persons who live outside of the county or are nonresidents, and by serving the judge of the probate court of the county wherein such property or interest is located, who shall stand in the place of and protect the rights of the disabled person or appoint a guardian ad litem for such person.
In the event of unknown persons or unborn remaindermen who are likely to have any rights in the property or interest or the proceeds thereof, the judge of the probate court of the county wherein such property or interest is located shall be served with a copy of the petition and order; and it shall be his duty to stand in the place and protect the rights of such unknown parties or unborn remaindermen.
The purpose of this article being to quicken and simplify the condemnation proceeding in all cases where the public good requires it and to provide for a condemnation in rem against the property or interest required to be taken or damaged and insofar as is reasonably possible to protect the rights of all parties to be heard at the time of the hearing before the special master, a substantial and reasonable effort to comply with the various modes of service provided for in this Code section shall be sufficient. Insofar as concerns the right of the condemning body to take or damage the property or any interest therein, upon the payment of the amount awarded by the special master into the registry of the court, the award of the special master and the judgment of the court condemning the property or interest to the use of the condemning body shall be conclusive.

(Ga. L. 1957, p. 387, § 10; Ga. L. 1966, p. 388, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2004, p. 161, § 4.3.)

The 2000 amendment, effective July 1, 2000, and applicable with respect to notices delivered on or after July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in paragraph (3) of subsection (d).

The 2004 amendment, effective July 1, 2005, in subsection (e), deleted "or other personal representative" following "the guardian" in the first sentence, deleted "or personal representative" following "the guardian" and inserted "or she" between "he" and "shall" in the second sentence, and deleted "or personal representative" following "no guardian" in the third sentence.

Editor's notes.

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

Law reviews.

- For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009).

JUDICIAL DECISIONS

Procedure satisfies due process.

- Section22-2-102 supplemented by this section and § 22-2-108 provides reasonable notice and opportunity for a condemnee to be heard and therefore satisfies the constitutional provisions as to due process. Kellett v. Fulton County, 215 Ga. 551, 111 S.E.2d 364 (1959).

Provisions for service on nonresidents formerly denied due process.

- The portion of this section which purported to provide for posting, publishing, and mailing notices to known nonresident owners, denied due process by not naming anyone to post, publish, or mail the notice therein referred to. Ray v. Mayor of Athens, 221 Ga. 73, 143 S.E.2d 386 (1965) (decided prior to amendment of this section by Ga. L. 1966, p. 388, § 1).

Service of petition upon nonresidents.

- not subject to readjudication in the superior court. Being a final judgment it is appealable if at all directly to the appellate courts under the provisions of § 5-6-34 by bill of exceptions on the record made before the special master; if it is not so appealable there is a hiatus in the law which it is the duty of the Legislature and not the judiciary to supply. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).

Once the sanction of the court is received, by the judge of the superior court accepting the master's report and entering up a proper order and judgment condemning the described property, and once this act has been ratified by the condemnor upon the payment into the registry of the court of the amount provided for in the award that judgment is final and conclusive on the question of what property or interest therein has been condemned. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).

Fee simple title to condemned property vests in condemnor. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).

Taking is complete upon payment of award to court.

- In a special master proceeding under this section and § 22-2-110, the taking is complete upon the award of the special master and payment into court of the amount determined. Roberts v. Wise, 140 Ga. App. 1, 230 S.E.2d 320 (1976).

There is no right to appeal from special master award to jury on nonvalue issues. Sweat v. Georgia Power Co., 235 Ga. 281, 219 S.E.2d 384 (1975).

Appellate review of question of what property interest has been taken is not barred by the last sentence of this section. Harwell v. Georgia Power Co., 154 Ga. App. 142, 267 S.E.2d 769, aff'd, 246 Ga. 203, 269 S.E.2d 464 (1980).

Court has discretion to vacate order where notice of condemnation insufficient.

- The trial court has a discretion at the term at which the judgment disbursing funds is entered to vacate the order and reopen the case where it is shown to the court's satisfaction that the claimant had received no notice of the condemnation proceedings. Roberts v. Wise, 140 Ga. App. 1, 230 S.E.2d 320 (1976).

Participation in hearing waived objection to defect in service.

- Where the appellants participated in the special master hearing on the date that it was held, they could not complain about lack of service and notice of the hearing. Taylor v. Taylor County, 231 Ga. 209, 200 S.E.2d 887 (1973); Black v. Fayette County, 268 Ga. 570, 492 S.E.2d 517 (1997).

Cited in Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588, 239 S.E.2d 387 (1977); Langley Land Co. v. Monroe County, 738 F. Supp. 1571 (M.D. Ga. 1990); Black v. Fayette County, 265 Ga. 175, 453 S.E.2d 692 (1995); Ware v. Henry County Water & Sewerage Auth., 258 Ga. App. 778, 575 S.E.2d 654 (2002).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27 Am. Jur. 2d, Eminent Domain, §§ 393, 394.

C.J.S.

- 29A C.J.S., Eminent Domain, §§ 196-204, 236, 242-249. 30 C.J.S., Eminent Domain, §§ 327-329. 72 C.J.S., Process, §§ 43 et seq., 73, 74.

ALR.

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

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