O.C.G.A. § 22-2-111 (2019)

Annotations

Cross references. - Procedure for obtaining private ways, see § 44-9-40 et seq. Law reviews. - For comment on Georgia Power Co. v. Fountain, 207 Ga. 361, 61 S.E.2d 454 (1950), see 13 Ga. B.J. 341 (1951). For comment on State Hwy. Dep’t

decree, and description of condemned property or interest or copies thereof; payment of fees to clerk of superior court. Intent of article regarding effect on other methods of condemnation.

v. Owens, 120 Ga. App. 647, 171 S.E.2d 770 (1969), and the right to inquire as to property owner’s knowledge of condemnation prior to making improvements, see 22 Mercer L. Rev. 616 (1971).

JUDICIAL DECISIONS Only public necessity can justify taking of private property. - The right of the humblest individual in the enjoyment of the individual’s property must be protected. The right to take private property from the owner for public use often works extreme hardship and savors of oppression. Nothing but a public necessity can justify it, and then only in strict conformity with the law. Williams v. City of La Grange, 213 Ga. 241, 98 S.E.2d 617 (1957). Condemnor chooses its method of procedure, and it is bound by the provisions of law following its own election. The property owner is also bound, although he did not choose the method of procedure. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961). Amendment of notice of condemnation proceedings is perfectly proper when the amendment’s allowance does not adversely and substantially affect the condemnee’s rights. Taylor v. Georgia Power Co., 129 Ga. App. 89, 198 S.E.2d 701 (1973). Condemnor has burden of proving land value and consequential damages. - The burden of proof to show the value of the land taken and the consequential damages to the remaining property, if any, is on the condemnor. State Hwy. Dep’t v. Smith, 111 Ga. App. 292, 141 S.E.2d 590 (1965).

Sole question for assessors or jury is amount of compensation. - When proceedings are instituted for the purpose of acquiring property for public purposes, the sole question which may be passed upon by the appointed assessors, or by a jury on appeal, is the amount of compensation to be paid to one whose property is being taken by the condemning authorities. Since the legislature has not expressly provided any method whereby the property owner can contest the question of public necessity or the right of condemnation, the property owner is left without a legal remedy and must resort to an independent action in a court of equity for relief. Williams v. City of La Grange, 213 Ga. 241, 98 S.E.2d 617 (1957); B. & W. Hen Farm, Inc. v. Georgia Power Co., 222 Ga. 830, 152 S.E.2d 841 (1966). The sole power of the assessors relates to the value of the property taken and to no other question. City of Carrollton v. Walker, 215 Ga. 505, 111 S.E.2d 79 (1959). In condemnation cases, the sole question for the consideration of the jury, upon an appeal from an award of the assessors or from an award of a special master, is the amount of compensation to be paid to the condemnee for the property taken under the condemnation proceeding and the amount of damages to the remaining property of the condemnee, if any. State

Hwy. Dep’t v. Smith, 111 Ga. App. 292, 141 S.E.2d 590 (1965). Appeal from award of assessors is de novo investigation, and the defendant in such proceedings may file an appropriate legal defense thereto. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934). An appeal from the award of assessors in a condemnation proceeding is a de novo investigation, and the defendant may file appropriate pleadings and defenses therein as in other suits. Georgia Power Co. v. Lightfoot, 97 Ga. App. 330, 103 S.E.2d 99 (1958). Law does not provide for intervention by any person claiming interest in property, whether or not such person was served with notice. Mitchell v. State Hwy. Dep’t, 216 Ga. 517, 118 S.E.2d 88 (1961). Statutory construction when procedural provisions incomplete. - When wording is taken from a prior statute, or when the law fails to be complete within itself, then reference to provisions for proceedings before assessors is permitted to fill in the void. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961). Contesting validity of condemnation proceedings. - When a property owner participates in proceedings but re-

fuses to take the award of the assessors, and when the property owner acted promptly after the award of the assessors was made by filing the owner’s petition in equity, alleging that the condemnor was proceeding illegally and had no right to condemn, and sought to enjoin the entering upon or taking possession of the owner’s property, the property owner is not estopped from contesting the validity of the condemnation proceedings. Johnston v. Clayton County Water Auth., 222 Ga. 39, 148 S.E.2d 417 (1966). Department of Transportation may not condemn municipally owned property as the legislature has not clearly granted such authority or created a procedure therefore, and as such grant may not be implied from statutory provisions generally establishing a procedure for state agencies to condemn ‘‘private property.’’ DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985). Condemnation for transportation purposes. - Even though the title to property to be condemned for transportation purposes was not in question, a city could choose to use procedures set forth in O.C.G.A. § 32-3-4 and, although it could have done so, was not required to use the procedures set forth in these condemnation statutes. Back v. City of Warner Robins, 217 Ga. App. 326, 457 S.E.2d 582 (1995).

OPINIONS OF THE ATTORNEY GENERAL Date of taking is date of special master’s or assessor’s award. 1970 Op. Att’y Gen. No. 70-116. Appraiser should be instructed to update appraisal to date of hearing before special master; this appraisal should contemplate that the amount of the award will be paid into court by con-

demnor within ten days of such hearing by the special master, and this is the amount that the appraiser should be prepared to testify to if and when there is an appeal of the matter to a jury in the superior court by either party thereto. 1970 Op. Att’y Gen. No. 70-116.

RESEARCH REFERENCES Am. Jur. Proof of Facts. - Eminent Domain: Lessee’s Recovery of Compensation for Taking of Leasehold Interest, 56 POF3d 419. Eminent Domain: Proof of Lack of Reasonable Necessity for Taking of Property, 71 POF3d 97.

ALR. - Expense of flagmen, gates, and automatic signals as items of compensation to railroad company across whose tracks a highway is laid, 4 A.L.R. 137. Eminent domain: rights of one having inchoate right to dower, 5 A.L.R. 1347; 101 A.L.R. 697.

Liability upon abandonment of eminent domain proceedings for loss or expenses incurred by property owner, 31 A.L.R. 356; 121 A.L.R. 12; 121 A.L.R. 12; 92 A.L.R.2d 349. Depreciation of property by location of school as taking or damaging within constitutional provision, 48 A.L.R. 1031. Constitutionality of statute which permits consideration of enhanced value of lands not taken, in fixing compensation for property taken or damaged in exercise of eminent domain, 68 A.L.R. 784. Constitutionality of provisions as to tribunal which shall fix the amount of compensation for taking of property in eminent domain, otherwise than objections that a trial by jury is necessary, 74 A.L.R. 569. Right to compensation in eminent domain on basis of entire extent of property or complete use ultimately contemplated in excess of present requirements, 75 A.L.R. 855. Right of tenant to remove buildings or other fixtures as affecting tenant’s right to compensation in respect to such improvements in condemnation proceeding, 75 A.L.R. 1495. Right of owner of dominant estate to have compensation for taking of easement by eminent domain determined with reference to land and improvements held in the dominant estate, 98 A.L.R. 640. Right to abandon and effect of abandonment of eminent domain proceedings, 121 A.L.R. 12. Special value or adaptability of property for purpose for which it is taken, as an element of, or matter for consideration in fixing, damages in condemnation proceedings, 124 A.L.R. 910. Distinction between income or profits from business on land and income or profits from use of land, as affecting admissibility of evidence in that regard on question of damages in eminent domain, 134 A.L.R. 1125. Increment to value, from project for which land is condemned, as a factor in fixing compensation, 147 A.L.R. 66. Eminent domain: valuation of land and improvements and fixtures thereon separately or as unit, 1 A.L.R.2d 878. Constitutional rights of owner as

against destruction of building by public authorities, 14 A.L.R.2d 73. Attorney’s fees as within statute imposing upon condemner liability for ‘‘expenses,’’ ‘‘costs,’’ and the like, 26 A.L.R.2d 1295. Abutting owner’s right to damages or other relief for loss of access because of limited-access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148. Distribution as between life tenant and remainderman of proceeds of condemned property, 91 A.L.R.2d 963. Liability upon abandonment of eminent domain proceedings for loss or expenses incurred by property owner, 92 A.L.R.2d 349. Condemnor’s right, as against condemnee, to interest on excessive money deposited in court or paid to condemnee, 99 A.L.R.2d 886. Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901. Good will or ‘‘going concern’’ value as element of lessee’s compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566. Necessity of trial or proceeding separate from main condemnation trial or proceeding to determine divided interest in state condemnation award, 94 A.L.R.3d 696. Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587. Eminent domain: measure and elements of lessee’s compensation for condemnor’s taking or damaging of leasehold, 17 A.L.R.4th 337. Sufficiency of condemnor’s negotiations required as preliminary to taking in eminent domain, 21 A.L.R.4th 765. Damages resulting from temporary conditions incident to public improvements or repairs as compensable taking, 23 A.L.R.4th 674. Eminent domain: measure and elements of damages or compensation for condemnation of public transportation system, 35 A.L.R.4th 1263. Validity, construction, and effect of statute or lease provision expressly governing rights and compensation of lessee upon

condemnation of leased property, 22 A.L.R.5th 327.

ARTICLE 1 PROCEEDING BEFORE ASSESSORS JUDICIAL DECISIONS Condemnation procedures are constitutional, although no special tribunal to pass on the question of necessity is provided for. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554, 42 S.E. 1 (1902). Condemnation procedures are general in nature and applies to all persons, natural and artificial, who come within its purview. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554, 42 S.E. 1 (1902). Condemnation procedures provide method to be followed when private property is taken or damaged for public purposes, and the procedure herein prescribed cannot be adopted when the property is sought to be taken for a purely private purpose. Garbutt Lumber Co. v. Georgia & Ala. Ry., 111 Ga. 714, 36 S.E. 942 (1900); Jones & Co. v. Venable, 120 Ga. 1, 47 S.E. 549, 1 Ann. Cas. 185 (1904). Condemnation procedures changed prior law enunciated in Parham v. Justices of Inferior Court, 9 Ga. 341 (1851), requiring a special act to authorize condemnation. Marietta Chair Co. v. Henderson, 121 Ga. 399, 49 S.E. 312, 104 Am. St. R. 156, 2 Ann. Cas. 83 (1904). Prior laws are superseded. - All prior laws providing different method of procedure for taking property under the power of eminent domain are superseded by the condemnation procedure. Alexander v. City Council, 134 Ga. 849, 68 S.E. 704 (1910); Bibb Brick Co. v. Central of Ga. Ry., 151 Ga. 83, 105 S.E. 833 (1921). Act permitting municipality to condemn land in fee simple is unconstitutional. M. O’Dowd’s Sons & Co. v. City Council, 141 Ga. 748, 82 S.E. 148 (1914). Power granted by charter not affected. - The power granted the Georgia Railroad & Banking Company to condemn

private property in the manner prescribed in its original charter as amended by the Act approved December 26, 1836 (Prince’s Dig. 358), could not legally be, and was not affected by the passage of the condemnation laws. Gardner v. Georgia R.R. & Banking Co., 117 Ga. 522, 43 S.E. 863 (1903) (decided prior to enactment of § 46-8-121). Power delegated to municipality. - If the power of eminent domain is conferred on the municipality by its charter, and no provision is made therein for its exercise, the general law embodied in the condemnation law is by implication a part of the law delegating the power. Stowe v. Town of Newborn, 127 Ga. 421, 56 S.E. 516 (1907). See Georgia R.R. & Banking Co. v. Mayor of Union Point, 119 Ga. 809, 47 S.E. 183 (1904); Zachry v. Mayor of Harlem, 138 Ga. 195, 75 S.E. 4 (1912). ‘‘Property’’ for purposes of the condemnation law 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). State property not subject to condemnation. - Statutes providing for condemnation of land for public use do not provide that the statutes shall apply to the state, nor is there anything to imply that the legislature intended such statutes to be applicable to the sovereign. Western Union Tel. Co. v. Western & A.R.R., 142 Ga. 532, 83 S.E. 135 (1914). Interest of lessee of state property is not subject to condemnation. Western Union Tel. Co. v. Western & A.R.R., 142 Ga. 532, 83 S.E. 135 (1914). Consent of property owner not necessary. - In condemnation proceedings, the willingness or unwillingness of the property owner to part with the owner’s property is not a subject matter of consid-

T.22, C.2, A.1 CONDEMNATION PROCEDURE GENERALLY eration. Central Ga. Power Co. v. Mays, 137 Ga. 120, 72 S.E. 900 (1911). Assessors need not be county residents. - It is not necessary that assessors appointed in condemnation proceeding should be residents of the county where such proceeding is instituted. Hutchinson v. Copeland, 146 Ga. 357, 91 S.E. 206 (1917). Power of condemnation may be exercised by railroad whose tracks cross the tracks of another. Atlantic & B.R.R. v. Seaboard Air-Line Ry., 116 Ga. 412, 42 S.E. 761 (1902). Person or corporation engaged in quarrying business, who needs right of way for private railroad across the lands of others, is authorized in a case of necessity to obtain the right of way by condemnation proceedings. Francis Jones & Co. v. Venable, 120 Ga. 1, 47 S.E. 549, 1 Ann. Cas. 185 (1904). Contesting validity of condemnation proceedings. - When a property owner participates in proceedings but refuses to take the award of the assessors, and when the property owner acted promptly after the award of the assessors was made by filing the owner’s petition in equity, alleging that the condemnor was

proceeding illegally and had no right to condemn, and sought to enjoin the entering upon or taking possession of the owner’s property, the property owner is not estopped from contesting the validity of the condemnation proceedings. Johnston v. Clayton County Water Auth., 222 Ga. 39, 148 S.E.2d 417 (1966). Statutory construction when procedural provisions incomplete. - When wording is taken from a prior statute, or when Ga. L. 1957, p. 387, § 1 (see O.C.G.A. § 22-2-100 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). If public authority does not proceed directly to condemn, injured citizen has right to compensation under the state Constitution. A cause of action for ‘‘inverse condemnation’’ will lie. Powell v. Ledbetter Bros., 251 Ga. 649, 307 S.E.2d 663 (1983). Cited in Mitchell County v. Hudspeth, 151 Ga. 767, 108 S.E. 305 (1921); Ainslee v. County of Morgan, 151 Ga. 82, 105 S.E. 836 (1921); Commissioners of Decatur County v. Curry, 154 Ga. 378, 114 S.E. 341 (1922).

PART 1 GENERAL PROVISIONS Law reviews. - For article, ‘‘Liabilities of the Former Officer or Director,’’ see 18 Ga. St. B.J. 150 (1982). For article,

‘‘Condemning Local Government Condemnation,’’ see 39 Mercer L. Rev. 11 (1987).