Use of condemned property.

- The appropriation to public use amounts to a withdrawal only from such private uses as will interfere with the public use. Private use is of course to be subordinated to the public use, but, where the fee remains in the owner, he is entitled to make any use of the property which is not inconsistent with its use for the purpose for which it was taken. H.G. Hastings Co. v. Southern Natural Gas Corp., 45 Ga. App. 774, 166 S.E. 56 (1932).

A power company that acquired an electric transmission line easement by condemnation in 1985 had not permanently ceased using the land under O.C.G.A. § 22-2-85; thus, the landowner from whom the land was acquired was not entitled to recover possession of the land. Although the company had not constructed a line across the property, the company maintained the property and planned to construct the line in question after 2010 and before 2020 to meet increased power demands. William E. Honey Bus. Interest, LLLP v. Ga. Power Co., 291 Ga. App. 44, 661 S.E.2d 203 (2008), cert. denied, No. S08C1408, 2008 Ga. LEXIS 678 (Ga. 2008).

Applicability.

- Since the original condemnor acquired part of a 50-foot easement by grant and part by condemnation, O.C.G.A. § 22-2-85 was inapplicable in a condemnation action brought by the condemnor's licensee to change the use of the easement from a petroleum pipeline to a fiber optic communications system; even if O.C.G.A. § 22-2-85 were applicable, it was not shown that the condemnor had ceased using the pipeline for the purpose of conducting its business. Witcher v. Level 3 Communs., LLC, 272 Ga. App. 611, 612 S.E.2d 816 (2005).

Condemned property reverts to owner if purpose permanently ceases.

- The clause in this section relating to the reverter of the condemned use means that if the use of the condemned property in the business to be served permanently ceases, the property is not to be used for other purposes, but the easement ceases or reverts to the then owners of the servient land. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591, 84 L. Ed. 1013 (1940).

When a street railway condemned land for a trolley, it acquired an easement, not fee simple title. Therefore, the railway's interest reverted to the owner, her heirs and assigns, when the land was no longer used as a trolley line. Cobb County v. Crew, 267 Ga. 525, 481 S.E.2d 806 (1997).

Although no deed need be executed, it will control if one is given. City of Atlanta v. Jones, 135 Ga. 376, 69 S.E. 571 (1910).

Term "right of way" as used in § 22-1-6 is limited by this section, so that it is descriptive of the tenure only. A county may construct a highway thereon. Atlanta, B. & Atl. Ry. v. County of Coffee, 152 Ga. 432, 110 S.E. 214 (1921). See also Georgia G.R.R. v. Venable, 129 Ga. 341, 58 S.E. 864 (1907).

Condemnation of land abutting street.

- The property of a land owner abutting a street may be condemned, although his interest in said street is not. Bridwell v. Gate City Term. Co., 127 Ga. 520, 56 S.E. 624, 10 L.R.A. (n.s.) 909 (1907).

When corporation acquires right to use property by condemnation under this section, the condemnation does not vest in the condemnor only a personal right of use during the life or ownership of the condemnor, but vests the interest condemned in the condemnor just as though it had been conveyed to it. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591, 84 L. Ed. 1013 (1940).

When business is transferred to another who continues to use condemned property as before, the condemnor is still using it through his transferee, even though he die, or be dissolved if a corporation and the right to the use of the property acquired through condemnation does not cease. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591, 84 L. Ed. 1013 (1940).

Cited in Central of Ga. Ry. v. Lawley, 33 Ga. App. 375, 126 S.E. 273 (1925); State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204, 199 S.E. 793 (1938); State Hwy. Dep't v. Peavy, 204 Ga. 99, 48 S.E.2d 726 (1948); Taylor v. Georgia Power Co., 129 Ga. App. 89, 198 S.E.2d 701 (1973); DOT v. Garrett, 154 Ga. App. 104, 267 S.E.2d 643 (1980); Georgia Dep't of Transp. v. Woodard, 254 Ga. 587, 331 S.E.2d 557 (1985).

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 130-133, 145-149.

C.J.S.

- 29A C.J.S., Eminent Domain, § 191. 30 C.J.S., Eminent Domain, §§ 449-461.

ALR.

- Reversion of title upon abandonment or vacation of public street or highway, 18 A.L.R. 1008, 70 A.L.R. 564.

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

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

Title of interest acquired by railroad in exercise of eminent domain as fee or easement, 155 A.L.R. 381.

Condemnation, proceeding therefor, or prospect thereof, as affecting marketability of title, 21 A.L.R.2d 792.

Who, as between condemnor and condemnee, bears risk of loss or destruction of property occurring after commencement but before completion of eminent domain proceedings, 89 A.L.R.2d 1076.

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