TITLE 32 HIGHWAYS, BRIDGES, AND FERRIES

Section 3. Acquisition of Property for Transportation Purposes, 32-3-1 through 32-3-39.

ARTICLE 1 GENERAL PROVISIONS

32-3-8. Service of process in condemnation proceedings generally.

Upon the filing of the petition and declaration, where the owner or owners of the property sought to be condemned or any person having a claim against or interest in the same are residents of this state, the petition and declaration shall be served upon such persons personally. In cases where such persons are residents of this state but not of the county in which such property or interest is located, such service shall be by second original, as in other cases.
If the owner, or any of the owners, or any person having a claim against or interest in the property is a minor or under any disability whatsoever, such notice shall be served:
1. Upon his or her guardian; and, if such guardian is a nonresident of this state, upon the judge of the probate court of the county in which the property or interest is located, who shall appoint a guardian ad litem to represent such minors or persons under disability in the litigation, provided that, if the nonresident guardian intervenes, he or she shall serve in lieu of the guardian ad litem; or
2. If there is no guardian, personally upon the minor, where such minor is a resident of this state. If such minor is not a resident of the county where the property or interest is located, service shall be by second original, as is provided by law in other cases, and upon the judge of the probate court of the county where the property or interest is located, who shall appoint a guardian ad litem to represent the minor in the litigation.
In subsection (b) of this Code section, if the judge of the probate court is disqualified, for reason of interest or other cause, notice shall be served upon the clerk of the superior court of the county, who shall appoint a guardian ad litem to represent the minor or person under disability.
If the property or interest sought to be condemned is held in trust or if the condemnation is directed toward property in which remainders have been created, notice shall be served upon the trustee and also upon such persons as have an interest under the conveyance and who are of age, provided that, where any of the persons to be served are not residents of the county, such service shall be by second original, as in other cases.
A copy of the petition and declaration shall be served upon the tax collecting authority of any county or municipality in which the property or interest may be located, who shall make known in writing the taxes due on the property or interest; and the court shall give such direction as will satisfy the same and discharge the lien thereon.
In all instances, and in addition to the service provided for in this Code section, the condemnor shall, at the time of filing the petition and declaration of taking, cause a copy of such proceedings to be posted on the bulletin board at the courthouse. In addition thereto, such advertisement shall be published in the official newspaper of the county in which the property or interest is located, which notice shall describe the property or interest taken so as to identify the same and shall give the name or names of the owner or owners of such property or interest or persons having claims against such property or interest so far as the same may be known. Such notice shall be published in such newspaper once each week for two weeks subsequent to the filing of such petition and declaration.

(Code 1933, § 95A-606, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2004, p. 161, § 7.1.)

Cross references.

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

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 606; former Civil Code 1895, § 520; and former Civil Code 1910, §§ 640 - 642, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Effect of section on other section's definition of personal service.

- Ga. L. 1973, p. 947, § 1 (see O.C.G.A. § 32-3-8) requires that the petition and declaration shall be served personally, but personal service as defined in Ga. L. 1972, p. 689, §§ 1-3 (see O.C.G.A. § 9-11-4) is not in conflict with this requirement. DOT v. Ridley, 244 Ga. 49, 257 S.E.2d 511 (1979).

Condemnee's right to proper service until voluntary waiver.

- Condemnees have a perfect right to waive service and come in, but until the condemnees are properly served, and unless the record shows this fact by a proper return of service, the right remains until the right is voluntarily waived. Knight v. Department of Transp., 134 Ga. App. 332, 214 S.E.2d 418 (1975).

No presumption of compliance.

- Order of the commissioner authorizing the widening of a public road and reciting "that notice of such widening had been published as required by law" furnishes no evidence by presumption or otherwise that persons or agents, residing on the land through which such road goes, were notified in writing as required. Fulton County v. Amorous, 89 Ga. 614, 16 S.E. 201 (1892) (decided under former Code 1882, § 606).

Notice mandatory in condemnation.

- If no notice is given as required, a petition to enjoin the condemnation of the land for the road should be sustained. Commissioners of Roads & Revenues v. Curry, 154 Ga. 378, 114 S.E. 341 (1922) (decided under former Civil Code 1910, § 642).

Injunction proper if notice not given.

- It is error for the court to refuse to enjoin the county authorities from proceeding to condemn the land, there having been no compliance with former Civil Code 1910, § 640 et seq. Ainslee v. County of Morgan, 151 Ga. 82, 105 S.E. 836 (1921); Mitchell County v. Hudspeth, 151 Ga. 767, 108 S.E. 305 (1921); Commissioners of Roads & Revenues v. Curry, 154 Ga. 378, 114 S.E. 341 (1922) (decided under former Civil Code 1910, § 640).

Notice to agent insufficient.

- When one purporting to be an agent of the owner of lands signs the application for establishing a road with the letters "agt." after the individual's name, this is an individual signature and will not deprive the owner of the owner's right to notice. Commissioners of Roads & Revenues v. Curry, 154 Ga. 378, 114 S.E. 341 (1922) (decided under former Code 1019, § 642).

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).

Widening condemned property requires notice.

- Since the evidence was undisputed that the road through the plaintiff's premises was originally marked and laid out by the road commissioners, 20 feet in width, and that the county authorities were attempting to widen the road so as to embrace land of the plaintiff without first acquiring, in the manner prescribed by law, the right to do so, the court erred in refusing to enjoin the taking of a strip of the plaintiff's land so as to widen the road beyond the limits originally marked out. Buchanan v. James, 130 Ga. 546, 61 S.E. 125 (1908) (decided under former Civil Code 1895, § 520).

Clerical error in notice not ground for dismissal.

- Words in a notice, "said road to be 50 feet in length," clearly appeared to be a clerical error, and, the length of the road otherwise appearing therein, it was proper to overrule a motion to dismiss the proceeding, based on the ground that the notice showed that the road was to be only 50 feet long, and for that reason could not be of public utility. Anderson v. Howard, 34 Ga. App. 292, 129 S.E. 567 (1925) (decided under former Civil Code 1910, § 642).

Timeliness of appeal.

- Since the appeal was filed more than 30 days from the date of personal service, although less than 30 days from the completion of advertising as provided for in subsection (f) of this section, the appeal was not timely. DOT v. Brooks, 143 Ga. App. 872, 240 S.E.2d 163 (1977); DOT v. Massengale, 141 Ga. App. 70, 232 S.E.2d 608 (1977); DOT v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651 (1980); Blonder v. Department of Transp., 156 Ga. App. 711, 275 S.E.2d 762 (1980) (see O.C.G.A. § 32-3-8).

Cited in Robinson v. DOT, 185 Ga. App. 597, 364 S.E.2d 884 (1988); DOT v. Morris, 186 Ga. App. 673, 368 S.E.2d 155 (1988).

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