Sovereign immunity.

- The legislature's and the judiciary's establishment and adherence to the rule of sovereign immunity is not a "taking" of property rights required to be compensated. Tyson v. Board of Regents, 212 Ga. App. 550, 442 S.E.2d 9 (1994).

Effect of sovereign immunity.

- Since the recovery of just and adequate compensation for private property which is taken for public purposes is itself an express constitutional right, sovereign immunity is not a viable bar to an action to enforce that right. State Bd. of Educ. v. Drury, 263 Ga. 429, 437 S.E.2d 290 (1993).

Action for value of private property taken or damaged for public purpose is not, in ordinary parlance, either tort or contract; it is simply a constitutional right which the citizen may not be denied. C.F.I. Constr. Co. v. Board of Regents of Univ. Sys., 145 Ga. App. 471, 243 S.E.2d 700, cert. dismissed, 242 Ga. 96, 249 S.E.2d 613 (1978).

In statutory proceeding where a person may be deprived of property, statute must be strictly pursued. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955).

Property interest required.

- Teachers who were denied renewable teaching certificates under invalidly promulgated regulations were not entitled to recover damages under the taking provision of the state Constitution, since they did not have a property interest in renewable teaching certificates that were never issued to them. State Bd. of Educ. v. Drury, 263 Ga. 429, 437 S.E.2d 290 (1993).

Exhausting state procedures as prerequisite to Fifth Amendment claim.

- When the plaintiff failed to file an inverse condemnation claim in the state court and when the federal court had not ruled on the inverse condemnation claim the plaintiff filed therein, the plaintiff's Fifth Amendment takings claim was not ripe for adjudication. Speer v. Miller, 864 F. Supp. 1294 (N.D. Ga. 1994).

In an action in which the plaintiff landowners filed suit against the defendant county alleging a taking under the Fifth Amendment, and inverse condemnation under Ga. Const. 1983, Art. I, Sec. III, Para. 1, in connection with the county's recreational development of its adjoining property, because the landowners had failed to avail themselves of Georgia's inverse condemnation procedure, the Fifth Amendment takings claim was premature, and the county motion for partial judgment on the pleadings was granted. Carney v. Gordon County, F. Supp. 2d (N.D. Ga. Sept. 12, 2006).

When statutory remedy not exclusive.

- When the statutory remedy, however broad it may be, cannot be initiated by the owner of the land, and the condemner alone can put it into operation but fails to do so, the statutory remedy is not exclusive, and the owner may resort to an action at common law. To construe the statute otherwise would render it unconstitutional. Housing Auth. v. Savannah Iron & Wire Works, Inc., 90 Ga. App. 150, 82 S.E.2d 244 (1954).

Supreme Court is without jurisdiction of action to recover damages for taking and injuring private property for public use, and the mere fact that the Constitution, under this paragraph, forbids such injury to or taking of private property without just and adequate compensation being first paid therefor in nowise makes a constitutional question for decision by such court. Mayor of Athens v. Gamma Delta Chapter House Corp., 208 Ga. 392, 67 S.E.2d 111 (1951).

The term "property" is a very comprehensive one and is used not only to signify things real and personal owned but to designate the right of ownership and that which is subject to be owned and enjoyed. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966).

The term "property" comprehends not only the thing possessed but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from the use. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966).

Role of equity in providing protection.

- If by mistake the constitutional protection provided for in Ga. Const. 1945, Art. I, Sec. I, Para. II (see now Ga. Const. 1983, Art. I, Sec. I, Para. II) and Ga. Const. 1945, Art. I, Sec. III, Para. I. (see now Ga. Const. 1983, Art. I, Sec. III, Para. I) is denied the citizen, and it is not voluntarily rectified, courts of equity will command its rectification. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958).

Inverse condemnation precluded after condemnation proceeding initiated.

- An inverse condemnation action cannot be maintained once a condemnation proceeding has been initiated by a condemning authority; that proceeding establishes the exclusive avenue for litigating the issue of just and adequate compensation. DOT v. Samuels, 185 Ga. App. 871, 366 S.E.2d 181, cert. denied, 185 Ga. App. 909, 366 S.E.2d 181 (1988).

Evidence sufficient to support jury's verdict that there was no inverse condemnation of business. See Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 168 Ga. App. 202, 308 S.E.2d 547 (1983).

Parameters of preliminary entry.

- A prospective condemnor is not required to adhere to condemnation procedures and constitutional provisions for compensation before making a preliminary entry, although it is responsible for all damages which occur during its preliminary entry. The permissible scope of an entry for preliminary survey, inspection and appraisal is, however, necessarily limited by the constitutional restrictions on the taking and damaging of property without just compensation; a taking may not be allowed under the guise of a preliminary survey, and the right of entry does not include the right to make permanent appropriation or cause more than minimal or incidental damage to property. Oglethorpe Power Corp. v. Goss, 253 Ga. 644, 322 S.E.2d 887 (1984).

Availability of injunction.

- Equity will grant an injunction when damages not properly tendered. Athens Term. Co. v. Athens Foundry & Mach. Works, 129 Ga. 393, 58 S.E. 891 (1907).

Time of payment.

- The land must be paid for before condemnation when the Act fails to make a provision therefor. Town of Poulan v. Atlantic Coast Line R.R., 123 Ga. 605, 51 S.E. 657 (1905).

Failure to institute proceedings may constitute waiver of right to payment before condemnation. Marietta Chair Co. v. Henderson, 121 Ga. 399, 49 S.E. 312 (1904).

Takings clause inapplicable.

- Application of the true up process to the shortfall caused by the bankruptcy of a natural gas limited liability company (LLC) did not violate the takings clauses of U.S. Const., amend. V or Ga. Const. 1983, Art. I, Sec. III, Para. I because after the true up process had operated as intended, and after the fact, a marketer sought to obtain from the government amounts representing the marketer's commercial losses on gas delivered to the LLC's customers, and that was merely a "consequential" loss to the marketer. MXenergy Inc. v. Ga. PSC, 310 Ga. App. 630, 714 S.E.2d 132 (2011).

Cited in Austin v. Augusta Term. Ry., 108 Ga. 671, 34 S.E. 852 (1899); Rogers v. Toccoa Power Co., 161 Ga. 524, 131 S.E. 517, 44 A.L.R. 534 (1926); Smith v. Floyd County, 36 Ga. App. 554, 137 S.E. 646 (1927); State Hwy. Bd. v. Baxter, 167 Ga. 124, 144 S.E. 796 (1928); Brown v. City of Atlanta, 167 Ga. 416, 145 S.E. 855 (1928); Habersham County v. Cornwall, 38 Ga. App. 419, 144 S.E. 55 (1928); City of Atlanta v. Hines, 39 Ga. App. 499, 147 S.E. 416 (1929); Floyd County v. Fincher, 169 Ga. 460, 150 S.E. 577 (1929); Georgia Pub. Serv. Comm'n v. Saye & Davis Transf. Co., 170 Ga. 873, 154 S.E. 439 (1930); MacDougald Constr. Co. v. Bass Canning Co., 42 Ga. App. 533, 156 S.E. 628 (1931); Fauss v. McConnell, 172 Ga. 444, 157 S.E. 625 (1931); Montgomery & Atlanta Freight Lines v. Georgia Pub. Serv. Comm'n, 175 Ga. 826, 166 S.E. 200 (1932); Pike County v. Matthews, 49 Ga. App. 152, 174 S.E. 642 (1934); Holland v. Whitfield County, 54 Ga. App. 453, 188 S.E. 288 (1936); Harrison v. State Hwy. Dep't, 183 Ga. 290, 188 S.E. 445 (1936); Perkerson v. State Hwy. Bd., 56 Ga. App. 316, 192 S.E. 475 (1937); Warren v. Georgia Power Co., 58 Ga. App. 9, 197 S.E. 338 (1938); State Hwy. Bd. v. Bridges, 60 Ga. App. 240, 3 S.E.2d 907 (1939); Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 10 S.E.2d 375 (1940); Brooks County v. Elwell, 63 Ga. App. 308, 11 S.E.2d 82 (1940); Habersham County v. Knight, 63 Ga. App. 720, 12 S.E.2d 129 (1940); City of Albany v. Lippitt, 191 Ga. 756, 13 S.E.2d 807 (1941); Hall v. State Hwy. Bd., 66 Ga. App. 190, 17 S.E.2d 291 (1941); Elder v. City of Winder, 201 Ga. 511, 40 S.E.2d 659 (1946); State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947); Southern v. Cobb County, 78 Ga. App. 58, 50 S.E.2d 226 (1948); Pilgreen v. City of Atlanta, 204 Ga. 710, 51 S.E.2d 655 (1949); Cannon v. City of Macon, 81 Ga. App. 310, 58 S.E.2d 563 (1950); Moore v. Baker, 85 Ga. App. 234, 68 S.E.2d 911 (1952); Kitchens v. Jefferson County, 85 Ga. App. 902, 70 S.E.2d 527 (1952); Allen v. City of Atlanta, 86 Ga. App. 476, 71 S.E.2d 871 (1952); Almon v. Terrell County, 89 Ga. App. 403, 79 S.E.2d 430 (1953); Mayor of Savannah v. Moses Rogers Hous. Corp., 91 Ga. App. 32, 84 S.E.2d 488 (1954); City of Thomson v. Davis, 92 Ga. App. 216, 88 S.E.2d 300 (1955); O.K., Inc. v. State Hwy. Dep't, 213 Ga. 666, 100 S.E.2d 906 (1957); United States of Am. v. Ivie, 163 F. Supp. 138 (N.D. Ga. 1957); Dougherty County v. Hamilton, 99 Ga. App. 468, 108 S.E.2d 886 (1959); Clarke County Sch. Dist. v. Madden, 99 Ga. App. 670, 110 S.E.2d 47 (1959); Kellett v. Fulton County, 215 Ga. 551, 111 S.E.2d 364 (1959); Mitchell v. City of Atlanta, 217 Ga. 202, 121 S.E.2d 764 (1961); City of Atlanta v. Lunsford, 105 Ga. App. 247, 124 S.E.2d 493 (1962); Hill v. Busbia, 217 Ga. 781, 125 S.E.2d 34 (1962); City of Atlanta v. Donald, 221 Ga. 135, 143 S.E.2d 737 (1965); State Hwy. Dep't v. MacDonald, 221 Ga. 312, 144 S.E.2d 363 (1965); Stambaugh v. City of Demorest, 221 Ga. 527, 145 S.E.2d 539 (1965); Veal v. Smith, 221 Ga. 712, 146 S.E.2d 751 (1966); Cato v. Arnold, 222 Ga. 567, 151 S.E.2d 149 (1966); State Hwy. Dep't v. Branch, 222 Ga. 770, 152 S.E.2d 372 (1966); DeKalb County v. McFarland, 223 Ga. 196, 154 S.E.2d 203 (1967); Abercrombie v. Ledbetter-Johnson Co., 116 Ga. App. 376, 157 S.E.2d 493 (1967); Tuggle v. Manning, 224 Ga. 29, 159 S.E.2d 703 (1968); Douglas County v. Abercrombie, 119 Ga. App. 727, 168 S.E.2d 870 (1969); Jones v. Georgia Power Co., 225 Ga. 510, 169 S.E.2d 810 (1969); Pye v. State Hwy. Dep't, 226 Ga. 389, 175 S.E.2d 510 (1970); Housing Auth. v. Mercer, 124 Ga. App. 477, 184 S.E.2d 225 (1971); Arnold v. Selected Sites, Inc., 229 Ga. 468, 192 S.E.2d 260 (1972); Hinson v. DOT, 230 Ga. 314, 196 S.E.2d 883 (1973); Taylor v. Georgia Power Co., 129 Ga. App. 89, 198 S.E.2d 701 (1973); Jackson v. McIntosh County, 232 Ga. 712, 208 S.E.2d 813 (1974); Baranan v. Fulton County, 232 Ga. 852, 209 S.E.2d 188 (1974); Andrews v. Department of Transp., 133 Ga. App. 78, 210 S.E.2d 30 (1974); Lee v. W.S. Venable, 134 Ga. App. 92, 213 S.E.2d 188 (1975); Miree v. United States, 526 F.2d 679 (5th Cir. 1976); Perry v. Landmark Fin. Corp., 141 Ga. App. 62, 232 S.E.2d 399 (1977); Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977); Georgia Franchise Practices Comm'n v. Massey-Ferguson, Inc., 240 Ga. 743, 242 S.E.2d 69 (1978); Lines v. State, 245 Ga. 390, 264 S.E.2d 891 (1980); Newsome v. Richmond County, 246 Ga. 300, 271 S.E.2d 203 (1980); City of Columbus v. Myszka, 246 Ga. 571, 272 S.E.2d 302 (1980); Noe v. Metropolitan Atlanta Rapid Transit Auth., 485 F. Supp. 501 (N.D. Ga. 1980); Smith v. Gwinnett County, 248 Ga. 882, 286 S.E.2d 739 (1982); Baranan v. Fulton County, 250 Ga. 531, 299 S.E.2d 722 (1983); Banks v. Georgia Power Co., 267 Ga. 602, 481 S.E.2d 200 (1997); City of Stockbridge v. Meeks, 283 Ga. App. 343, 641 S.E.2d 584 (2007); Bd. of Comm'rs v. Johnson, 311 Ga. App. 867, 717 S.E.2d 272 (2011); Lathrop v. Deal, 301 Ga. 408, 801 S.E.2d 867 (2017).

Local Act unconstitutional.

- The Act of the General Assembly granting to the City of Albany power to regulate garages and filling stations, and other businesses (Ga. L. 1923, p. 412), to license those businesses only in such localities as may be least offensive to the public, and to revoke the license for those businesses when they prove dangerous and injurious to health is in conflict with the due process clause of the Constitution of Georgia as found in Ga. Const. 1877, Art. I, Sec. I, Para. I (see now Ga. Const. 1983, Art. I, Sec. II, Para. I), and is also in conflict with the Constitution of Georgia as found in Ga. Const. 1877, Art. I, Sec. III, Para. I (see now Ga. Const. 1983, Art. I, Sec. III, Para. I), insofar as that Act is interpreted by the public officials of the City of Albany to authorize a refusal of a permit sought by an owner of property to construct a filling station which conforms in every way to the building regulations of the city. Reynolds v. Brosnan, 170 Ga. 773, 154 S.E. 264 (1930).

Child support guidelines are not illegal taking.

- Trial court erred in concluding that the Child Support Guidelines, under O.C.G.A. § 19-6-15, resulted in an illegal taking from a parent, by reducing the parent to poverty status, in violation of the Georgia Constitution; the guidelines rather represented the state's efforts to ensure adequate care for children whose parents were divorced or separated. Ga. Dep't of Human Res. v. Sweat, 276 Ga. 627, 580 S.E.2d 206, cert. denied, 540 U.S. 966, 124 S. Ct. 432, 157 L. Ed. 2d 310 (2003).

Necessity for strict compliance with prerequisites.

- The taking of private property for a public use is the exercise of a high power, and before such taking can be constitutionally accomplished all prerequisites must be complied with strictly. Woodside v. City of Atlanta, 214 Ga. 75, 103 S.E.2d 108 (1958).

Exercise of right of eminent domain is legislative function and the General Assembly may by law prescribe the procedure for taking private property for public uses. State Hwy. Dep't v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964).

Right of eminent domain gives legislature control of private property for use of public; provided just compensation be made to the owner therefor and all grantees of land from the state, and their assigns, hold it under this tacit agreement or implied understanding. State Hwy. Dep't v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964).

Eminent domain cannot be used to restrict legitimate activity in which state has interest.

- Governing authority has no right to utilize power of eminent domain under Ga. Const. 1976, Art. I, Sec. III, Para. I (see now Ga. Const. 1983, Art. I, Sec. III, Para. I) and Ga. Const. 1976, Art. III, Sec. VIII, Para. II (see now Ga. Const. 1983, Art. III, Sec. VI, Para. II(b)) in order to restrict a legitimate activity in which the state has an interest. Earth Mgt., Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455 (1981).

Role of judiciary.

- 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).

The courts may not interfere with the legislative discretion of a condemning body in judging the public need for and amount of property to be taken unless the condemning authority has acted in bad faith or beyond the powers conferred upon it. City of Atlanta v. First Nat'l Bank, 246 Ga. 424, 271 S.E.2d 821 (1980).

Delegability of power to agencies.

- Since the legislature cannot in every case supervise the condemnation of property for public use, it may confer the power to do so on agencies. State Hwy. Dep't v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964).

Delegability to public corporation.

- Grant of power of eminent domain to public or quasi public corporation held valid. Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749, 65 S.E. 844 (1909).

Delegability to foreign corporation.

- The grant of the power of eminent domain to a foreign corporation is valid. Southwestern R.R. v. Southern Atl. Tel. Co., 46 Ga. 43, 12 Am. R. 585 (1872).

Condemning authority may not act in bad faith in exercise of right of eminent domain. Earth Mgt., Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455 (1981).

Private life and health held above public convenience.

- The right of private convenience, the right of the private citizen to hold and own any particular property, must yield to public convenience and public service whenever and wherever the legislature says yield, and to this extent the right of eminent domain is paramount; but private life and private health are more precious in the eyes of the law than even public convenience. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).

Applies to all forms of property.

- The right of the sovereign in the property of the citizen is hedged by two fundamental safeguards: the taking must be for a public purpose, and it must be attended by just and adequate compensation. This includes every species of property in which the individual has a right of ownership, whether real or personal, corporeal or incorporeal. Weiner v. Fulton County, 113 Ga. App. 343, 148 S.E.2d 143, cert. denied, 385 U.S. 958, 87 S. Ct. 393, 17 L. Ed. 2d 304 (1966).

Conferred right of eminent domain can operate only upon the property and never on the person or citizen. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934).

As property, contracts may be condemned. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417, 219 S.E.2d 707 (1975).

Property dedicated to particular purpose cannot by dedicatee, a municipality, be diverted from that purpose, except under right of eminent domain. Donalson v. Georgia Power & Light Co., 175 Ga. 462, 165 S.E. 440 (1932).

Condemnation proceeding enjoined when not in conformity with charter.

- When the charter of a municipality requires the adoption of a valid ordinance as a prerequisite to the 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).

Condemning authority not to damage property without taking.

- This paragraph allows the condemning authority to "take" a property interest, that is all or part of the fee, upon payment of compensation; it does not, however, give these authorities the power to damage property without such a taking. Metropolitan Atlanta Rapid Transit Auth. v. Trussell, 247 Ga. 148, 273 S.E.2d 859 (1981).

A municipality must compensate a street railway for property taken for building streets. Mayor of Savannah v. Vernon Shell Rd. Co., 88 Ga. 342, 14 S.E. 610 (1892).

Right of railroads to occupy city streets is subject to this paragraph. Atlanta & W. Point R.R. v. Atlanta, Birmingham & Atl. R.R., 125 Ga. 529, 54 S.E. 736 (1906); Athens Term. Co. v. Athens Foundry & Mach. Works, 129 Ga. 393, 58 S.E. 891 (1907).

Right of railroad to obtain grant under Ga. L. 1892, p. 37, § 9 (see now O.C.G.A. § 46-8-100(4)), relating to acquisition of right of way, held valid. Hopkins v. Florida Cent. & Peninsula R.R., 97 Ga. 107, 25 S.E. 452 (1895).

Municipality must obtain consent of chartered railroad before it can open street across carrier's lines. Brunswick & W.R.R. v. Mayor of Waycross, 94 Ga. 102, 21 S.E. 145 (1894); Stowe v. Town of Newborn, 127 Ga. 421, 56 S.E. 516 (1907).

Necessity for condemnation proceedings to subject railroad right of way to public use.

- The right of way and tracks of a railroad company cannot be subjected to another and consistent public use, against the consent of the company, except under condemnation proceedings duly authorized. Central of Ga. Ry. v. Haralson County, 230 Ga. 217, 196 S.E.2d 392 (1973).

Company must prove right to erect poles.

- To justify a company which uses poles and wires in the transmission of electric currents in setting up its poles in the land of a highway, it must show that it has acquired the right to do so, either by consent or condemnation from the owner of the soil. The designation by the municipality of the street where the poles may be set up is not enough. Donalson v. Georgia Power & Light Co., 175 Ga. 462, 165 S.E. 440 (1932).

Right to assess costs of paving streets.

- Assessments of costs of paving a street against abutting land are not an exercise of the right of eminent domain. Speer v. Mayor of Athens, 85 Ga. 49, 11 S.E. 802 (1890); Georgia Ry. & Elec. Co. v. City of Atlanta, 144 Ga. 722, 87 S.E. 1058 (1916); Walthour v. City of Atlanta, 157 Ga. 24, 120 S.E. 613 (1923); City of Bainbridge v. Jester, 157 Ga. 505, 121 S.E. 798 (1924).

A municipal act which provides that abutting and other property and its owner are responsible for the construction cost of sidewalks and other work done which is necessary does not and cannot give the city authority to either take or damage private property without just and adequate compensation. City of East Point v. Allison, 97 Ga. App. 499, 103 S.E.2d 664 (1958).

Cutting down shade trees.

- Where shade trees, growing on a strip of land between a sidewalk and a street of the municipality, are located on land which is owned by a person in fee simple, the city has no right to cut down or remove such trees without the consent of the owner, there being no public necessity therefor. City of Marietta v. Mozley, 183 Ga. 875, 190 S.E. 34 (1937).

Condemnation to prevent use as hazardous waste facility constituted bad faith.

- County acted in bad faith in instituting condemnation proceedings for obvious purpose of preventing land from being used as hazardous waste facility. Earth Mgt., Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455 (1981).

Authority of General Assembly to provide for prepayment.

- This paragraph authorizes, but does not require, the General Assembly to provide for prepayment of an estimated amount against adequate compensation as a condition precedent to the exercise of the right of eminent domain and to provide for disbursement of the amount so prepaid to those entitled thereto. State Hwy. Dep't v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964).

Right of Department of Transportation to cancel landowner's contract with telegraph company.

- When telegraph company has a contract with the owner whereby it is entitled to establish and maintain its equipment upon the land involved, and the State Highway Department (now Department of Transportation) has knowledge thereof, and its title is expressly made subject thereto, it cannot exercise an option in the contract agreement to cancel it, by canceling a part but not all, and take or damage property therein without first paying therefor. State Hwy. Dep't v. Western Union Tel. Co., 218 Ga. 663, 129 S.E.2d 872 (1963).

Constitutional requirement of compensation not obliterated by federal petroleum marketing practices statute.

- The Federal Petroleum Marketing Practices Act, (15 U.S.C. § 2801 et seq.), which regulates petroleum franchise and marketing practices, and which requires that the franchisor "fairly apportion" between itself and a dealer any recovery "if received" by the franchisor for loss of business, concerns franchise and marketing rights only and does not touch upon or obliterate the state constitutional requirement that just and adequate compensation be paid to any condemnee for a property interest, including a leasehold interest. Simmerman v. DOT, 167 Ga. App. 383, 307 S.E.2d 4 (1983).

The Department of Transportation may not exercise eminent domain powers over municipally owned property as the legislature has not clearly granted such authority or created a procedure therefor, 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).

County's use of power to prevent city's treatment facility improper.

- Use of the condemnation process by a county is not within its power and amounts to acting in bad faith when the true reason for the county's condemnation was to prevent the construction of a public sewage-treatment facility by a local city. Carroll County v. City of Bremen, 256 Ga. 281, 347 S.E.2d 598 (1986).

Impairment shared by general public.

- Reconstruction of a highway which reduced visibility of landowner's billboard to traffic did not constitute an unconstitutional taking of property because the impairment was shared by the public in general and was not compensable. Moreton Rolleston, Jr. Living Trust v. DOT, 242 Ga. App. 835, 531 S.E.2d 719 (2000).

Survey part of power of eminent domain.

- Power company was properly granted declaratory relief and an injunction was properly granted against the property owners who would not permit the power company access to their land to conduct surveys for a planned electrical transmission line because the power company, as the condemning body, had the right to survey and the property owners' express refusal to allow access presented an actual risk of a breach of the peace that was alleviated by the entry of the declaratory judgment. Bearden v. Ga. Power Co., 262 Ga. App. 550, 586 S.E.2d 10 (2003).

Effect of enlargement of scope of paragraph.

- Prior to the adoption of the Constitution of 1877, which enlarged the scope of this paragraph, a county, not being suable at common law, and constituting a political subdivision of the sovereign power, could not be sued for damaging private property for public uses. Bibb County v. Green, 42 Ga. App. 552, 156 S.E. 745 (1931); Felton Farm Co. v. Macon County, 49 Ga. App. 239, 175 S.E. 29 (1934).

County is liable for damage to property under this paragraph. Smith v. Floyd County, 85 Ga. 420, 11 S.E. 850 (1890); Harris County v. Brady, 115 Ga. 767, 42 S.E. 71 (1902); Fender v. Lee County, 31 Ga. App. 604, 121 S.E. 843 (1924).

A right of action exists against a county for damaging private property for public uses; the liability of counties for damages in all cases being the actual depreciation in the market value of the premises injured. Bibb County v. Green, 42 Ga. App. 552, 156 S.E. 745 (1931).

When right of action arises against county.

- When private property is taken or damaged by the authorities of a county, or by their duly authorized servant, for the use of the public, without just compensation being first paid, a right of action arises in favor of the owner of the property, which may be enforced by suit against the county, and the owner is entitled to recover adequate compensation for the property taken or damaged. State Hwy. Bd. v. Ward, 42 Ga. App. 220, 155 S.E. 384 (1930); Page v. Washington County, 48 Ga. App. 791, 173 S.E. 868 (1934).

County enjoyed immunity from negligence and nuisance claims.

- Because a county enjoyed sovereign immunity from a pedestrian's negligence and nuisance claims asserted in a personal injury action against the county for its alleged failure to maintain a water meter cover, the trial court properly dismissed the claims; however, a personal injury for purposes of inverse condemnation did not constitute personal property that could be taken. Rutherford v. DeKalb County, 287 Ga. App. 366, 651 S.E.2d 771 (2007).

Installation of competing water system by county.

- A county that installs a competing water system is not required to compensate a private water system owner for property loss of its business with customers under the taking clause of the Georgia Constitution when the owner has neither an exclusive franchise to supply water nor a non-compete agreement with the county. Amos Plumbing & Elec. Co. v. Bennett, 261 Ga. 810, 411 S.E.2d 490 (1992).

Constitution provides for waiver of sovereign immunity.

- While, as a general rule, a county is not liable to suit unless there is a law which in express terms or by necessary implication so declares, yet the appropriate law may be found in this paragraph. Page v. Washington County, 48 Ga. App. 791, 173 S.E. 868 (1934); Gwinnett County v. Allen, 56 Ga. App. 753, 194 S.E. 38 (1937).

Nuisance suits for injunction and damages can be maintained against a county under this paragraph. Therefore, the Constitution provides for a waiver of sovereign immunity when a county creates a nuisance which amounts to an inverse condemnation. Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978).

Taking is prerequisite to waiver of sovereign immunity

- While this paragraph can be a waiver of sovereign immunity in certain cases involving public works construction contracts, it is not considered to be a waiver unless there has first been a taking. C.W. Matthews Contracting Co. v. DOT, 160 Ga. App. 265, 286 S.E.2d 756 (1981).

Liability to suit when property damaged by county for a public purpose.

- Construing together this paragraph and former Code 1933, § 23-1502 (see now O.C.G.A. § 36-1-4), a right of action was afforded against a county for damage to private property for public uses or taking private property for public uses. Consequently, a county was liable to suit at the instance of an individual for damages to the individual's property done by the county for a public purpose. Taylor v. Richmond County, 185 Ga. 610, 196 S.E. 37, answer conformed to, 57 Ga. App. 586, 196 S.E. 303 (1938).

Right to sue county for damages for the taking or damaging of private property is not dependent on any statute, but arises out of this paragraph which applies to counties as well as to individuals. Brooks County v. Elwell, 63 Ga. App. 308, 11 S.E.2d 82 (1940).

A right of action exists against a county for damaging private property for public uses; the liability of counties for damages to property in all cases being the actual depreciation in the market value of the premises injured. Felton Farm Co. v. Macon County, 49 Ga. App. 239, 175 S.E. 29 (1934).

A county can be held liable to the extent of an injury to property, not on the theory that the county is liable, as are other tort-feasors, for the negligent acts and conduct of its agents while acting within the scope of their authority, but for the reason that it cannot, either with or without the guise of contractual authority, damage the property of another for the public use without just and adequate compensation being paid. Felton Farm Co. v. Macon County, 49 Ga. App. 239, 175 S.E. 29 (1934).

The right of a property owner to recover against a county for damages to the owners' property because of public improvements is by reason of this paragraph. Reid v. Gwinnett County, 242 Ga. 88, 249 S.E.2d 559 (1978).

Lawsuits involving taking or damaging of property under this paragraph may be maintained against counties. Ingram v. Baldwin County, 149 Ga. App. 422, 254 S.E.2d 429 (1979).

Acts of omission resulting in failure to take.

- Because a developer's Ga. Const. 1983, Art. I, Sec. III, Para. I(a) claim that a county improperly refused to accept subdivision roads rested not on a taking but on an act of omission resulting in a failure to take which had no effect on functionality, no viable claim for inverse condemnation was raised, and the county was entitled to sovereign immunity from the developer's claim. Rabun County v. Mt. Creek Estates, LLC, 280 Ga. 855, 632 S.E.2d 140 (2006).

Under this paragraph, cities, counties, and all other public organizations are all upon an equal footing, and there is no reason for holding a county exempt from suits for acts done by it for objects within its legal competency, when a city, for like acts done within its legal competency, would not be exempt. Richmond County v. Williams, 109 Ga. App. 670, 137 S.E.2d 343 (1964).

Liability for acts of officers and agents.

- Municipalities are liable for the acts of their officers, agents, and servants only: (a) in the performance of any function where a statute specifically provides for such liability; (b) for neglect to perform or improper or unskillful performance of their ministerial duties; (c) for the performance of their governmental functions where the same amounts to the taking or damaging of private property for public purposes without first making adequate compensation therefor, or the creation of a nuisance dangerous to the life and health of persons because of its proximity to them in the enjoyment of their property. Stubbs v. City of Macon, 78 Ga. App. 237, 50 S.E.2d 866 (1948).

Liability for property taken by agent.

- County liable for property taken by agent acting under general authority of the officer or officers charged with the management of the county affairs and the work of its public roads. Dougherty County v. Tift, 75 Ga. 815 (1885); Mallory v. Morgan County, 131 Ga. 271, 62 S.E. 179 (1908); Elbert County v. Brown, 16 Ga. App. 834, 86 S.E. 651 (1915).

County liable at suit of owner of equitable title, though project later abandoned. Fender v. Lee County, 31 Ga. App. 604, 121 S.E. 843 (1924).

County may levy tax to pay for liability.

- A county may be held liable for a diminution in the value of land resulting from the alteration and relocation of a public road passing through it, and the county authorities may lawfully levy a tax to pay such liability. Hall County v. Smith, 178 Ga. 212, 172 S.E. 645 (1934).

Effect of damage by Department of Transportation upon county's liability.

- A county is liable for the taking or damaging of private property for public purposes under this paragraph, and the fact that the Highway Department (now Department of Transportation) did the alleged damage during a time it was sought by legislative action to relieve counties from furnishing rights of way does not affect the liability in such circumstances. Gwinnett County v. Allen, 56 Ga. App. 753, 194 S.E. 38 (1937).

Effect of prior decisions upon ability of citizen to sue state itself.

- Whether or not this paragraph has the effect of giving to a citizen the right to sue the state itself in its sovereign capacity for such a claim is not determined by those cases recognizing such a right of suit against the State Highway Board (now State Transportation Board) counties and municipalities, as political divisions of the state sovereignty; since in those cases the question turned, not on whether the sovereignty was suable without its consent, but on whether it had given its constitutional or legislative consent to be thus sued. Florida State Hosp. for the Insane v. Durham Iron Co., 194 Ga. 350, 21 S.E.2d 216 (1942).

Right of contractor to sue state.

- Sovereign immunity notwithstanding, a contractor has the right to sue the state under this paragraph to collect for labor and materials which the contractor has supplied and which the state has accepted and retained. Fonda Corp. v. Department of Human Resources, 147 Ga. App. 226, 248 S.E.2d 528 (1978).

Post-construction non-nuisance damage.

- As a matter of law, the post-construction non-nuisance damage done to private property by a single malfunction in the operation of a public works project is not damage which has been done for a "public purpose" within the meaning of Ga. Const. 1983, Art. I, Sec. III, Para. I. Desprint Servs., Inc. v. DeKalb County, 188 Ga. App. 218, 372 S.E.2d 488 (1988).

Private property which was flooded as the result of a burst water main, which had been equipped with a new "butterfly" valve in connection with a road construction project undertaken a few weeks earlier by a county was not damaged for the "public purpose" of actually constructing any public works project within the meaning of Ga. Const. 1983, Art. I, Sec. III, Para. I. Desprint Servs., Inc. v. DeKalb County, 188 Ga. App. 218, 372 S.E.2d 488 (1988).

Inverse condemnation claim against city failed as matter of law.

- Plaintiffs asserted an inverse condemnation claim, alleging that damage to their property caused by a city's proposed construction of sidewalks deprived the plaintiffs of property without due process in violation of Ga. Const. 1983, Art. I, Sec. III, Para. I(a). This claim failed as a matter of law because the city never began construction on the proposed sidewalk installation project and the city did not interfere with the plaintiffs' right to use their property. Bailey v. City of Atlanta, 296 Ga. App. 679, 675 S.E.2d 564 (2009).

Actual damage sustained regardless of whether property taken.

- Whether the property is taken or not, if it is damaged by the construction or operation of improvements made for the use of the public, its owner can recover whatever damage it has actually sustained. Franklin v. City of Atlanta, 40 Ga. App. 319, 149 S.E. 326 (1929).

Damage need not be caused by acts amounting to trespass.

- The damages that an individual may recover for injuries to the individual's property need not necessarily be caused by acts amounting to a trespass, or by an actual, physical invasion of the individual's real estate, but, if the individual's property be depreciated in value by the individual's being deprived of some right of use or enjoyment growing out of and appurtenant to the estate as the direct consequence of the construction and use of any public improvement, the individual's right of action is complete, and the individual may recover to the extent of the injury sustained. Dougherty County v. Hornsby, 213 Ga. 114, 97 S.E.2d 300 (1957); Johnson v. Burke County, 101 Ga. App. 747, 115 S.E.2d 484 (1960).

Consequential damage to property is a "taking" entitling owner to compensation. Wright v. Metropolitan Atlanta Rapid Transit Auth., 248 Ga. 372, 283 S.E.2d 466 (1981).

Damages must be special to warrant recovery.

- To entitle the plaintiff to recover under this provision the damage alleged to have been sustained must have been special, and not participated in by the general public, and the sole measure of the damage is the difference between the market value of the property before the track was relocated and the value thereof after the track was relocated. Southern Ry. v. Leonard, 58 Ga. App. 574, 199 S.E. 433 (1938).

In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with the plaintiff's property, and which gives to it an additional value; and that by reason of such disturbance the plaintiff has sustained a special damage with respect to the property, in excess of that sustained by the public generally. Dougherty County v. Hornsby, 213 Ga. 114, 97 S.E.2d 300 (1957); Johnson v. Burke County, 101 Ga. App. 747, 115 S.E.2d 484 (1960).

The rights of plaintiffs fall into two categories: general rights, which they have in common with the public; and special rights, which they hold by virtue of their ownership of property. In order to constitute a taking or damaging of their property, it is the special rights that must have been violated. Tift County v. Smith, 219 Ga. 68, 131 S.E.2d 527 (1963).

Damage suffered by condemnee which is different from that suffered by 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).

"Public purpose" synonymous with "public use."

- In order to be compensable under this paragraph the damage to a person's property must have been for a "public purpose" and the words "for public purpose" have been construed as synonymous with "public use." Johnson v. City of Atlanta, 117 Ga. App. 586, 161 S.E.2d 399 (1968).

If an incident causing damage is for a "public purpose," which is synonymous with "public use," it amounts to a taking without just and adequate compensation being first paid if the city takes private property without first paying for it. Pair Dev. Co. v. City of Atlanta, 144 Ga. App. 239, 240 S.E.2d 897 (1977).

Meaning of term "damage."

- Property is damaged in the sense of this paragraph when there is some physical interference with a right of use appertaining to the property. City of Atlanta v. Dinkins, 46 Ga. App. 19, 166 S.E. 429 (1932); McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

Condemnee is, under this paragraph, entitled to just compensation for every species of property taken or damaged, real or personal, corporeal or incorporeal. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966).

It is not necessary for petitioner to show actual physical taking of the petitioner's land; any interference with any of the petitioner's property rights therein is a taking of the petitioner's land within the inhibition of this paragraph. Denson v. Chattooga County, 99 Ga. App. 234, 108 S.E.2d 155 (1959).

Right to damages for inverse condemnation.

- The property owner has a right to seek damages against a public authority when such public authority is engaging in some form of inverse condemnation. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 156 Ga. App. 209, 274 S.E.2d 653 (1980).

If a public authority does not proceed directly to condemn, the injured citizen nonetheless has a 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).

Farmers' inverse condemnation count alleging that a city damaged their land by spreading sewer sludge on the land with toxic elements in concentrations high enough to be considered hazardous waste was properly dismissed as the farmers consented to the city's spreading of sewer sludge on their land. McElmurray v. Augusta-Richmond County, 274 Ga. App. 605, 618 S.E.2d 59 (2005).

It was error to award a developer damages on its inverse condemnation claim because the developer had not shown a compensable taking. Although there was a delay in developing the six lots at issue, the developer was not prevented from marketing and developing its subdivision or from making other uses of the six lots; all required approvals had occurred for the six lots; and the six lots had maintained their value. Prime Home Props., LLC v. Rockdale County Bd. of Health, 290 Ga. App. 698, 660 S.E.2d 44 (2008), cert. denied, No. S08C1330, 2008 Ga. LEXIS 685 (Ga. 2008).

Condemnor cannot immunize itself from paragraph.

- A condemnor cannot immunize itself from its constitutional obligation to pay compensation for the taking or damaging of property done pursuant to the power of eminent domain. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967).

This paragraph applies when private property is taken or damaged for public use by State Highway Board (now State Transportation Board) without just compensation being first paid; and in such a case a right of action arises in favor of the owner of the property, which may be enforced by suit against the State Highway Board. State Hwy. Bd. v. Ward, 42 Ga. App. 220, 155 S.E. 384 (1930).

Under its power and discretion in the location, construction, and maintenance of state-aid roads, the State Highway Board (now State Transportation Board) cannot deprive the owners of land abutting thereon of their easement of access without first paying to such owners just and adequate compensation therefor. Dougherty County v. Hornsby, 213 Ga. 114, 97 S.E.2d 300 (1957).

Liability exists when work done by independent contractor.

- The liability of the defendant city, under this paragraph, to pay for damage to private property resulting from public works is primary and absolute, and it is immaterial that the work may have been done by an independent contractor. City of Atlanta v. Kenny, 83 Ga. App. 823, 64 S.E.2d 912 (1951).

Whether former Code 1933, §§ 51-2-4 and51-2-5) were exhaustive as to exceptions to the rule of nonliability of an employer for the acts of an independent contractor, they must yield to and cannot control the constitutional duty imposed upon a condemnor to pay compensation for the taking or damaging of private property for public purposes whether or not such taking or damaging was done by an independent contractor hired by the condemnor. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967).

Joint liability for erection of utility poles in railroad 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 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).

Joint liability of county and State Transportation Board.

- When a county and the State Highway Board (now State Transportation Board) joined in damaging private property for the use of the public without first paying adequate compensation, a right of action arose in favor of the owner of the property, and the owner could have brought a joint action against the county and the State Highway Board (now State Transportation Board). State Hwy. Bd. v. Ward, 42 Ga. App. 220, 155 S.E. 384 (1930).

Applicability to cutting trees.

- When certain trees growing on a space between a sidewalk and street of the defendant municipality were, according to the allegations of the petition (which, on demurrer, must be taken as true), situated and growing on land owned by plaintiff in fee simple, and when such trees were, according to the allegations of the petition, cut down and removed by the municipality without the consent of the owner, a prima-facie right of action arose in the owner's favor for the damage thus sustained. Baldwin v. City of Dawson, 41 Ga. App. 90, 151 S.E. 825 (1930).

Applicability to taking for public street purposes.

- Payment of just and adequate compensation therefor must always precede the taking of private property, for public street purposes, by a municipal corporation. Harrison v. City of East Point, 208 Ga. 692, 69 S.E.2d 85 (1952).

Denial of building permit because of planned condemnation.

- When the sole reason for the city's denial of a property owner's permit application for a 14,000 sq. ft. building was its determination that an announced taking would eliminate the parking spaces necessary to accommodate the building, the owner was entitled to compensation, upon proper proof, for the difference between the building the owner could have built but for the direct result of the condemnation and the building the owner was limited to as a direct consequence of the taking, which measured only 10,400 sq. ft. Lee v. DOT, 191 Ga. App. 1, 380 S.E.2d 726 (1989).

Must show county authorities responsible.

- While this paragraph declares that private property shall not be taken or damaged for public use without just compensation, the taking or damaging referred to must be by some authority empowered by law to do those acts; and before a recovery can be had against a county for taking or damaging private property, it must be shown that the proper authorities of the county were responsible for the taking or damaging, or that they ratified it after the property was so taken or damaged. McGhee v. Floyd County, 95 Ga. App. 221, 97 S.E.2d 529 (1957).

Renovation expenses not recoverable as relocation expenses.

- When there was evidence of expenses incurred in an extensive renovation of the new premises to which a medical practice had been moved after condemnation, these renovation expenses were not recoverable as relocation expenses by either the doctor or the doctor's corporation and in charging the jury that it could award relocation expenses in an amount such that a condemnee "would be in substantially the same position he was in prior to the taking of his property," the superior court may have fostered the erroneous impression that all or a portion of the nonrecoverable renovation cost could be awarded as recoverable relocation expenses, warranting a new trial. Metropolitan Atlanta Rapid Transit Auth. v. Funk, 263 Ga. 385, 435 S.E.2d 196 (1993).

Compensation not required upon exercise of police power.

- The provisions of the Constitution of Georgia, prohibiting the taking of private property for a public purpose without compensation, have no relevance to the exercise of the police power by the state or the state's political subdivisions. Lewis v. DeKalb County, 251 Ga. 100, 303 S.E.2d 112 (1983) (decided under Ga. Const. 1976, Art. I, Sec. III, Para. I).

Trial court properly dismissed an insurance company's suit for inverse condemnation against a county because the insured's home was damaged during the exercise of police power and, thus, did not fall within the waiver of sovereign immunity set forth in Ga. Const. 1983, Art. I, Sec. II, Para. IX(e). Amica Mut. Ins. Co. v. Gwinnett County Police Dep't, 319 Ga. App. 780, 738 S.E.2d 622 (2013).

Distinction between use of eminent domain and use of police power is that the former involves the taking of property because it is needed for public use while the latter involves the regulation of the property to prevent its use in a manner detrimental to the public interest. Pope v. City of Atlanta, 242 Ga. 331, 249 S.E.2d 16 (1978), cert. denied, 440 U.S. 936, 99 S. Ct. 1281, 59 L. Ed. 2d 494 (1979).

The police power or the law of overruling necessity is not controlled by this paragraph which was not designed for, and should not be extended to, such cases. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

Municipality may take under police power without paying compensation.

- Under certain circumstances and conditions, a municipality may, acting under its police power for the general welfare of the public, take or use the property of a person or corporation without paying compensation therefor. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

No liability for prosecution of crimes.

- The safeguarding of society by the prosecution of crimes against it is a sovereign attribute inherent in all governments, and for mistakes in exercising this sovereign right there can be no liability against the government without its consent. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

Uncompensated obedience to regulation enacted for public safety under police power of state is not taking or damaging without just compensation of private property, or of private property affected with a public interest. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

Loss suffered from exercise of police power is damnum absque injuria; therefore, an appeal for compensation must be to the public authority, and not to the courts. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

At common law, state might destroy buildings in effort to stop spread of conflagration under its police power, and the owner was entitled to no compensation. A statutory provision for payment, however, may be provided. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

Damages suffered in hunt for murder victim uncompensable.

- A suit by the owner for damages to realty occasioned by the law enforcement officers of the state and a county in seeking to locate the body of a murder victim cannot be maintained against the state or the county; the action of the officers was under and pursuant to the police power of the state and its political subdivision. McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966).

Damage to private car used in police search not compensable.

- In a suit against a county seeking a judgment for damage and loss of use of plaintiff's vehicle occurring while the plaintiff was serving as a volunteer member of the county Emergency Management Team, which was assisting the sheriff's office in a nighttime search for a weapon involved in a crime, even if there were a factual issue as to the taking of plaintiff's vehicle, since the right was pursuant to the state's police powers, the plaintiff could not be compensated for it as a matter of law. Bray v. Houston County, 180 Ga. App. 166, 348 S.E.2d 709 (1986).

Damages can be awarded without showing of loss of profit.

- Damages for loss of business can be awarded without a showing of loss of profit, provided the loss is not remote or speculative. DOT v. Hillside Motors, Inc., 192 Ga. App. 637, 385 S.E.2d 746, cert. denied, 192 Ga. App. 901, 385 S.E.2d 746 (1989).

Condemnee has right of compensation for damages to the condemnee's business and expenses incident to removing it to a new location which directly resulted from condemnation proceedings. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966).

Moving merchandise.

- In a condemnation case when the condemnee is engaged in a business where merchandise is kept on the property being condemned, the jury may consider the cost of removing such merchandise, not as a separate item of recovery, but as a factor which may illustrate just and adequate compensation. State Hwy. Dep't v. Robinson, 103 Ga. App. 12, 118 S.E.2d 289 (1961).

Condemned property must have uniqueness for business.

- This paragraph creates a highly practical presumption which says that, as a matter of law, business losses cannot be attributed to condemnation unless the property had some uniqueness for the business. Metropolitan Atlanta Rapid Transit Auth. v. Ply-Marts, Inc., 144 Ga. App. 482, 241 S.E.2d 599 (1978).

Mere business losses when property not unique for business not compensable.

- In the absence of a showing of a special or unique value to the owner, mere business losses caused by a partial taking of the land on which a business is located are not a separate element for compensation. Evidence of such losses may be submitted to a jury only to help establish the market value of property taken. Southwire Co. v. DOT, 147 Ga. App. 606, 249 S.E.2d 650 (1978).

Must be separate item of recovery.

- In a condemnation proceeding, the destruction of an established business is and must be a separate item of recovery. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966).

No inverse condemnation shown as to taxi cab certificates of public necessity.

- Dismissal of the city taxi cab drivers' complaint for failure to state a cause of action that the 2015 amendment of O.C.G.A. § 36-60-25(a) resulted in an unconstitutional taking and inverse condemnation was affirmed because no law prohibited the city from increasing the Certificates of Public Necessity and Convenience (CPNC) limit and no property interest the drivers may have in their respective CPNCs extended to exclusivity or a limited supply of CPNCs. Abramyan v. State of Ga., 301 Ga. 308, 800 S.E.2d 366 (2017).

Taxicabs have been the subject of frequent and intensive regulation in the State of Georgia, and O.C.G.A. § 36-60-25(a) does not take business property for a public use, the statute merely requires an already regulated business to adjust its property to the new law. Abramyan v. State of Ga., 301 Ga. 308, 800 S.E.2d 366 (2017).

Interfering with access compensable.

- Interfering with access to premises by impeding or rendering difficult ingress or egress, is such taking and damaging as entitles the party injured to compensation under a provision for compensation when property is damaged. Dougherty County v. Hornsby, 213 Ga. 114, 97 S.E.2d 300 (1957); Johnson v. Burke County, 101 Ga. App. 747, 115 S.E.2d 484 (1960); Clayton County v. Billups E. Petro. Co., 104 Ga. App. 778, 123 S.E.2d 187 (1961); Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 156 Ga. App. 209, 274 S.E.2d 653 (1980).

A right of ingress or egress to property may constitute an easement, the impairment of which will render the actor liable for damaging the property although there has been no taking of the property itself. Mayor of Athens v. Gamma Delta Chapter House Corp., 86 Ga. App. 53, 70 S.E.2d 621 (1952).

The State Highway Board (now State Transportation Board) cannot deprive the owners of abutting land of their easement of access without paying to such owners adequate and just compensation therefor. Johnson v. Burke County, 101 Ga. App. 747, 115 S.E.2d 484 (1960).

When the plaintiff had enjoyed practically unlimited ingress and egress for almost seven years, conversion of the highway from an unlimited to a limited access one constituted a taking or damaging of private property for public purposes. Clayton County v. Billups E. Petro. Co., 104 Ga. App. 778, 123 S.E.2d 187 (1961).

When a right of way for a limited access road is duly condemned the right of the property owner, through whose lands it passes and divides, to go upon or across such highway is lost. Before such right is taken from the owner the stern mandate of this paragraph must be obeyed. One of the pertinent issues in the condemnation of the right of way for a limited access highway is the value of this very right of access, the right to go upon and across the proposed highway. State Hwy. Dep't v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557 (1966).

Impact of interference considered.

- In a condemnation case, the jury instructions as a whole were correct in informing the jury that where the owner's access to a public road was taken, the deprivation should be compensated, but the jury could consider whether the owner had any alternative access when determining the amount of damages due to the deprivation of access. Curry v. DOT, 341 Ga. App. 482, 801 S.E.2d 95 (2017).

Every owner of property which abuts upon a street has a property right in the street, as an easement for the purpose of access to the owner's premises, and a deprivation of this private right is prima facie, in the absence of proof of compensation, contrary to law. Franklin v. City of Atlanta, 40 Ga. App. 319, 149 S.E. 326 (1929).

Easement of access belonging to owners of land abutting upon a highway is a property right, of which the landowner cannot be deprived upon the ground that the safety of the public traveling upon the highway may be endangered by the exercise of this easement by the abutting landowner, without just and adequate compensation being first paid to the owner. Dougherty County v. Hornsby, 213 Ga. 114, 97 S.E.2d 300 (1957).

Owners of property which abuts a public road have the right to the use and enjoyment of such road in common with all other members of the public, as well as other rights such as ingress and egress which do not belong to the public generally, and these rights exist regardless of whether the fee of the highway is in such owners or not. State Hwy. Dep't v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557 (1966).

The right of access, or easement of access, to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation being first paid. Metropolitan Atlanta Rapid Transit Auth. v. Datry, 235 Ga. 568, 220 S.E.2d 905 (1975).

To go upon and across the public road is one of the fundamental rights which belong to abutting landowners. State Hwy. Dep't v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557 (1966).

One of the rights of a landowner is to pass across a highway from one tract or parcel of the owner's land to another situated on opposite side. State Hwy. Dep't v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557 (1966).

Owner not entitled to access at all points along highway.

- Although the owner of land abutting upon a highway has the right to use and enjoy the highway in common with other members of the public and has an easement of access to the land abutting upon the highway, which easement of access does not belong to the public generally and which exists whether or not the fee of the highway is in the landowner or not, such owner, however, is not entitled, as against the public, to access to the owner's land at all points in the boundary between it and the highway, if the entire access has not been cut off, and if the owner is offered a convenient access to the owner's property and to improvements thereon, and the owner's means of ingress and egress are not substantially interfered with by the public. Johnson v. Burke County, 101 Ga. App. 747, 115 S.E.2d 484 (1960).

Rights of owner whose property does not abut on street changed.

- If the property is situated within the block in which the change of the street takes place, and a usual, direct, and immediate means of access thereto or egress therefrom is thereby materially impaired or done away with, the property owner may recover of the municipality, although the owner's property does not abut on the street changed. City of Atlanta v. Dinkins, 46 Ga. App. 19, 166 S.E. 429 (1932).

Temporary obstruction is not a taking or damaging of property by eminent domain under this paragraph, and the temporary obstruction of right of ingress and egress does not deprive one of one's private property. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 156 Ga. App. 209, 274 S.E.2d 653 (1980).

Making road one-way.

- City was properly granted summary judgment in an inverse condemnation suit because its change making a road a one-way street did not disturb the direct vehicular access existing from the owners' land to the abutting street; thus, there was no compensable taking, despite the fact that access was less convenient. Hanson v. City of Roswell, 262 Ga. App. 671, 586 S.E.2d 341 (2003).

No injunction when no property taken.

- The Supreme Court will not by interlocutory injunction interfere with the erection of a public work in which no part of the property of the citizen complainant is actually taken. Evans v. Just Open Gov't, 242 Ga. 834, 251 S.E.2d 546 (1979).

Holder of rent contract has compensable interest.

- The holder of a valid rent contract for realty, though it be for a period of less than five years, has a property right in the leased premises, which is protected by this paragraph; and this is true whether the leasehold interest be taken or damaged by a county, a municipal corporation, or any other public organization. Waters v. DeKalb County, 208 Ga. 741, 69 S.E.2d 274 (1952).

Lessee has compensable damages when the lessee entered into a renewal lease after taking by eminent domain but before the original lease expired. Ellis v. DOT, 175 Ga. App. 123, 333 S.E.2d 6 (1985).

Courts of Georgia have drawn distinctions between the rights of a holder of a usufruct and those of a title holder. A usufruct is not subject to ad valorem taxation pursuant to O.C.G.A. § 48-5-3, and the usufruct interest does not authorize the tenant to seek an easement by necessity, pursuant to O.C.G.A. § 44-9-40(b). However, the usufruct holder's possessory rights may constitute a property interest for which just compensation is payable under Ga. Const. 1983, Art. I, Sec. III, Para. I(a). The Stuttering Foundation, Inc. v. Glynn County, 301 Ga. 492, 801 S.E.2d 793 (2017).

Termination of a leasehold interest by condemnation is a compensable taking.

- Obviously a lessor, for the lessor's protection, may put in the lessor's lease a clause providing that as between the parties the lease is terminated in the event of condemnation, but this does not control Georgia law on the subject of compensability from the condemnor. Simmerman v. DOT, 167 Ga. App. 383, 307 S.E.2d 4 (1983) (on motion for rehearing).

Leasehold interest in premises for definite term is property, within meaning of that word as it is employed in this paragraph. Ammons v. Central of Ga. Ry., 215 Ga. 758, 113 S.E.2d 438 (1960).

A tenant, although the tenant has no estate in the land, is the owner of its use for the term of the tenant's rent contract, and can recover damages for any injury to such use resulting from the construction of a duly authorized public improvement. Waters v. DeKalb County, 208 Ga. 741, 69 S.E.2d 274 (1952).

Power of lessee to obtain injunction.

- The holder of a leasehold or usufructuary interest in land is entitled to enjoin the taking or damaging of the holder's leasehold interest without just and adequate compensation being first paid. State Hwy. Dep't v. Western Union Tel. Co., 218 Ga. 663, 129 S.E.2d 872 (1963).

Factors not necessary for lessee to establish to obtain compensation.

- The "just and adequate" provision of this paragraph requires that property be neither taken nor damaged without just and adequate compensation. A taking of the fixtures and inventory of the lessee need not therefore be established, nor does it preclude a recovery either that all the leased premises were not taken or that the lessee had not exercised the option to purchase at the time. DeKalb County v. Fulton Nat'l Bank, 156 Ga. App. 253, 274 S.E.2d 649 (1980).

Diminished rental value for any purpose is no basis for compensation except as to its result, if any, on the general value. Southern Ry. v. Leonard, 58 Ga. App. 574, 199 S.E. 433 (1938).

Municipality liable for creation of nuisance.

- A municipality, whether exercising its governmental or its ministerial functions, is liable for creating a nuisance which damages property and also hazards health. Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978).

A county, unlike a municipality, is not generally liable for creating nuisances. Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978).

Summary judgment was properly granted to a county on an inverse condemnation claim filed by four property owners as the county did not either create or maintain a construction project that allegedly created a nuisance that harmed the owners since a city owned and maintained the nuisance property, the county exercised no control over the properties, and the county could not be deemed to have performed a continuous act that caused the owners' harm; while the county bid out the construction contract, it had no role in designing the plans for the contractor to use on the project or in supervising the contractor's work and the owners did not show that the county official performed any action beyond passing on an inquiry between the Georgia Department of Transportation and the city. Reidling v. City of Gainesville, 280 Ga. App. 698, 634 S.E.2d 862 (2006).

If a county causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes, the county is liable. Miree v. United States, 242 Ga. 126, 249 S.E.2d 573 (1978).

Whatever is done by authority of law, if done as law directs or authorizes, is not a nuisance. Perkerson v. Mayor of Greenville, 51 Ga. App. 240, 180 S.E. 22 (1935).

Constitutional basis for recovery for maintenance of continuing nuisance.

- When the public authorities properly erect and properly maintain the improvements authorized by law, an action in tort is not maintainable by the owner of damaged property. In such a case, the only right of action maintainable is that conferred by this paragraph, and the recovery permitted is strictly limited to the direct damage inflicted by diminishing the market value of the property damaged. Southland Coffee Co. v. City of Macon, 60 Ga. App. 253, 3 S.E.2d 739 (1939).

County liable for diversion of surface water.

- The continuous channeling of surface water across property to its damage, amounts to the taking of an easement over the lands, and is in contemplation of this paragraph. Sheehan v. Richmond County, 100 Ga. App. 496, 111 S.E.2d 924 (1959).

When a county maintains a continuing nuisance by diverting surface water which causes damage to property, a claim arises in favor of the property owner each time such flooding, siltation, pollution, or other damage occurs, and upon giving the 12-months notice required by former Code 1933, § 23-1602 (see now O.C.G.A. § 36-11-1), such property owner is entitled to recover those damages incurred in the 12 months preceding the giving of the notice. Reid v. Gwinnett County, 242 Ga. 88, 249 S.E.2d 559 (1978).

Effect of failure to give notice of continuing nuisance.

- A property owner is not barred from recovering for damages for a continuing nuisance, even when notice is not given within 12 months of completion of construction of the roadway. Reid v. Gwinnett County, 242 Ga. 88, 249 S.E.2d 559 (1978).

Liability of Department of Transportation for diversion of surface water.

- When the Highway Department (now Department of Transportation) so constructs a concrete outlet-trap that a large increase in the volume of surface water is caused to flow upon and damage the plaintiff's property, this constitutes a damaging and taking of private property for public purposes within the purview of this paragraph. Sheehan v. Richmond County, 100 Ga. App. 496, 111 S.E.2d 924 (1959).

Fact that third parties occupy property between highway and plaintiff's property does not affect the plaintiff's right to recover for the damaging and taking of the plaintiff's property. Sheehan v. Richmond County, 100 Ga. App. 496, 111 S.E.2d 924 (1959).

No property interest in accessing Georgia Port Authority terminal.

- Truck driver's claim that the driver was improperly barred from an authority's terminal was properly dismissed because the driver failed to show that the driver had an enforceable property interest for purposes of due process and eminent domain jurisprudence. Gambell v. Ga. Ports Auth., 276 Ga. App. 115, 622 S.E.2d 464 (2005).

County may not be sued under theory of eminent domain in tort action for personal injury when the county would otherwise be authorized to assert its civil immunity. Wilmoth v. Henry County, 251 Ga. 643, 309 S.E.2d 126 (1983).

County is not liable to a father of a minor child injured by negligence of a servant of county in operating a truck, for loss of the services of the child, on the theory that the deprivation of the father of the services is the taking or damaging of property for public use without just compensation, nor would it make any difference that the driver of the truck was employed in repairing a public road. Born v. Fulton County, 51 Ga. App. 537, 181 S.E. 106 (1935).

No liability for dangerously installed water meter.

- The paving of a walkway along the outer edge of a city park, but within the park, by the municipality in connection with the installation of automobile parking meters so as to leave a water meter projecting above the surface of the paved walkway in a manner dangerous to pedestrians using the walkway amounts to a governmental function in connection with the construction and maintenance of a city park, and the water meter thus situated is not such a nuisance as amounts to the taking or damaging of private property for public purposes without first making adequate compensation therefor. Stubbs v. City of Macon, 78 Ga. App. 237, 50 S.E.2d 866 (1948).

County liable for halting flow of stream.

- When a county, grading a road under contract with the Highway Department (now Department of Transportation), hauls dirt one hundred feet from the right of way and dumps it into a spring on land adjoining plaintiffs' and stops up the spring and cuts off a stream which flowed upon and through plaintiffs' property, it is liable in damages for the difference between the value of the plaintiffs' land before and after the stoppage of the flow of water. Davis v. Cobb County, 61 Ga. App. 712, 7 S.E.2d 324 (1940).

Lay opinion testimony on cost to build a 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 former O.C.G.A. § 24-9-66 (see now O.C.G.A. § 24-7-701) 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).

Evidence concerning the value of stream mitigation credits inadmissible.

- Trial court did not err in excluding, as a component of the market value of condemned property, evidence concerning the value of stream mitigation credits that trusts intended to sell in connection with the condemned property because the trusts failed to show how the value of stream mitigation credits was relevant to the sole issue of just and adequate compensation when at the time of the taking, the proposed stream mitigation bank had not yet been created on the condemned property, and no stream mitigation credits had been awarded; no evidence was presented to show that the proposed future use of the property as a stream mitigation bank, or the value of stream mitigation credits it could have generated, had an effect on market value. Martha K. Wayt Trust v. City of Cumming, 306 Ga. App. 790, 702 S.E.2d 915 (2010).

Lawful taking which results in damages.

- When the Highway Department (now Department of Transportation) does what it has right under law to do, but, still damages plaintiff, the Highway Board (now State Transportation Board) is bound to make compensation. Felton v. State Hwy. Bd., 51 Ga. App. 930, 181 S.E. 506 (1935).

Homeowner may sue for direct physical damage.

- When there has been direct physical damage to the plaintiff's home resulting from the construction of a highway, a county may be sued therefor under this paragraph and it is not necessary to support the action that any portion of the plaintiff's property be taken or that it abut or touch the highway. Richmond County v. Williams, 109 Ga. App. 670, 137 S.E.2d 343 (1964).

Municipalities liable when grade of street changed.

- Under this paragraph, municipal corporations are liable for consequential damages resulting to property owners from raising or lowering the grade of streets. City of Atlanta v. Dinkins, 46 Ga. App. 19, 166 S.E. 429 (1932).

When a change is made by a municipality in the grade of a street, and the market value of real property abutting thereon is thereby decreased, the owner has a cause of action against the municipality. The measure of damages to abutting property is the difference between the market value of the property before and after the change of the grade. Harbour v. City of Rome, 54 Ga. App. 97, 187 S.E. 231 (1936), aff'd, 184 Ga. 37, 190 S.E. 364 (1937).

City only indirectly liable for work done to city street by county or state highway department.

- A contract or resolution by which a city authorizes the Highway Department (now Department of Transportation) and a county to use and improve a city street for a state highway is not ultra vires or otherwise illegal, and when damage on account of a decrease in the market value of an adjoining lot results from the grading of a street constituting such a highway, or in the necessary grading or leveling of that portion of a street which joins the highway, the city would not be liable on the theory that it was a joint tort-feasor in directing or participating in a nuisance, but such remedy as would lie would exist by virtue of this paragraph. Perkerson v. Mayor of Greenville, 51 Ga. App. 240, 180 S.E. 22 (1935).

Landowners have no compensable interest 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. 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).

Closing of road not compensable.

- The closing of a road abutting a shopping center at the intersection of the road with a state highway was not a compensable taking of property when the business did not lose access to any abutting roadway and still had access to the highway by traveling about one mile. DOT v. Durpo, 220 Ga. App. 458, 469 S.E.2d 404 (1996).

Creation of obstruction down road not compensable.

- The fact that down the road from plaintiff's farm a dead-end obstruction was created so as to constitute a cul-de-sac, causing inconvenience, does not constitute the taking or damaging of private property for a public purpose so as to require compensation. Tift County v. Smith, 219 Ga. 68, 131 S.E.2d 527 (1963).

Joint liability in construction of limited access highway.

- While Ga. L. 1955, p. 559 (now repealed) authorizes the cooperation of counties and municipal corporations with the Highway Department (now Department of Transportation) for the purpose of establishing limited access highways, there is nothing in the statute or in the law generally which expressly or by implication makes one of the cooperating governmental entities liable for the unilateral tortious acts of another cooperating governmental entity in a project of this type. Madden v. Fulton County, 102 Ga. App. 19, 115 S.E.2d 406 (1960).

Contractual right to traffic signal.

- When condemnee had been granted a contractual right in a deed from the Department of Transportation (DOT) to have a signal near its business location which permitted ease of access to its motel and this signalization was part of the bargain for consideration in a condemnation action between the defendant and the DOT, that contractual right could be condemned by DOT; however, the condemnee was entitled to just and adequate compensation therefor and the trial court did not err in charging the jury the condemnee has a special right to turn left from and into a highway. DOT v. Consolidated Equities Corp., 181 Ga. App. 672, 353 S.E.2d 603 (1987).

Loss of leasehold interest.

- When claimant sought to recover loss of an advantageous leasehold interest, as well as moving expenses, after a highway project and related condemnation actions had been halted, and claimant had been advised that no move was required before September 1982 and that written notification would precede a required removal, the claimant's decision to move in August 1982 was by voluntary choice and could not be attributed to an interference by the Department of Transportation with its exclusive rights of ownership, use and enjoyment. Whether the claimant'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).

Special damage from temporary construction easement.

- If the condemnee can show that the temporary taking of a portion of the condemnee's property for a construction easement caused some special damage to the condemnee's remaining property, other than the general inconvenience, noise, dust, and obstruction caused by the construction process, Ga. Const. 1983, Art. I, Sec. III, Para. I requires that the state pay for any diminished value of the remainder. Hillman v. DOT, 257 Ga. 338, 359 S.E.2d 637 (1987).

No compensation for having to drive more circuitous route to reach property.

- A property owner sought compensation for an alleged inverse condemnation of the owner's land and damage to the owner's business following certain bridge closings and construction, which did not directly affect access to the owner's property, nor change the ingress to and egress from the owner's business, but did necessitate driving a more circuitous route to reach the owner's property from certain areas. As the owner alleged only that the owner suffered damage to a greater degree than that of others affected by the bridge closings, the owner was not entitled to compensation. Hendrix v. Department of Transp., 188 Ga. App. 429, 373 S.E.2d 264 (1988).

Testimony regarding lost profits.

- In an inverse condemnation action based on a temporary taking of leaseholds in connection with highway construction, it was not permissible for the leaseholder to introduce expert testimony as to the loss of business profits and worth for the purpose of proving the value of the leaseholds. Bill Ledford Motors, Inc. v. DOT, 225 Ga. App. 548, 484 S.E.2d 510 (1997).

Sewer as nuisance.

- Even though the construction, installation and maintenance of a sewer-drainage system, including that for surface water, is a governmental function, a municipal corporation can nevertheless be held liable with respect to these activities on the theory of nuisance and on the theory of taking or damaging for public purposes without just and adequate compensation being first paid. Turk v. City of Rome, 133 Ga. App. 886, 212 S.E.2d 459, aff'd, 235 Ga. 223, 219 S.E.2d 97 (1975).

While the power to construct a sewer and drainage system is a governmental function, a county cannot create and maintain such a system as a nuisance which damages private property without subjecting itself to civil liability. Ingram v. Baldwin County, 149 Ga. App. 422, 254 S.E.2d 429 (1979).

Single instance of backup of county sewage system into private home would not be sufficient to create nuisance for which county liability would attach. Ingram v. Baldwin County, 149 Ga. App. 422, 254 S.E.2d 429 (1979).

Justification required for zoning classification.

- As the individual's right to the unfettered use of the individual's property confronts the police power under which zoning is done, the balance the law strikes is that a zoning classification may only be justified if it bears a substantial relation to the public health, safety, morality, or general welfare. Lacking such justification, the zoning may be set aside as arbitrary or unreasonable. City of Smyrna v. Ruff, 240 Ga. 250, 240 S.E.2d 19 (1977).

Zoning classification that substantially burdens a property owner may be justified if the classification bears a substantial relation to the public health, safety, morality, or general welfare. Lacking that kind of justification, the zoning may be set aside as arbitrary or capricious. If a land-use regulation is arbitrary and capricious then the regulation cannot stand. Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597, 807 S.E.2d 876 (2017).

Standard for finding regulation confiscatory.

- If the zoning regulation results in relatively little gain or benefit to the public while inflicting serious injury or loss on the owner, such regulation is confiscatory and void. City of Smyrna v. Ruff, 240 Ga. 250, 240 S.E.2d 19 (1977).

Mere unlawful attempt to regulate land use not compensable.

- An unlawful attempt on the part of the governing authorities to regulate the use of the property of the owner for the owner's own purposes does not constitute a taking within the meaning of this paragraph, and accordingly does not entitle the owner of such property to compensation from the state or its agents, or give the owner any right of action for the injuries sustained. Davis v. Johnson, 92 Ga. App. 858, 90 S.E.2d 426 (1955).

Prevention of future uses not compensable.

- The police power of the state to zone property to prevent its use for certain purposes in the future, as distinguished from the taking or damaging in respect to a use already in existence, is not open to question, and does not require the payment of any compensation. National Adv. Co. v. State Hwy. Dep't, 230 Ga. 119, 195 S.E.2d 895 (1973).

Diminution of value resulting from a zoning classification, in and of itself, does not constitute an unconstitutional deprivation. Gradous v. Board of Comm'rs, 256 Ga. 469, 349 S.E.2d 707 (1986).

Denial of an application to rezone lot from residential use to commercial use was not an unconstitutional taking of property without just compensation. Westbrook v. Board of Adjustment, 245 Ga. 15, 262 S.E.2d 785 (1980).

Burden of proof on plaintiff.

- The plaintiff has the burden of showing that the zoning under attack is so detrimental to the plaintiff, and so insubstantially related to the public health, safety, morality and welfare, as to amount to an unconstitutional "taking," that is, an arbitrary confiscation of the plaintiff's property without compensation by the governing authority. Hubert Realty Co. v. Cobb County Bd. of Comm'rs, 245 Ga. 236, 264 S.E.2d 179 (1980).

Rezoning properly required.

- When on appeal from denial of a rezoning application, the county's evidence was clearly insufficient to justify its contention that the current zoning classification of plaintiff's property promoted the health, safety, morals, or general welfare of the public, and both the county planner and a county commissioner testified that plaintiff's property was ill-suited to its present zoning classification, the trial court did not err in declaring the zoning classification of plaintiff's property to be unconstitutional and in ordering the board of commissioners to rezone it in a constitutional manner. Cobb County v. Shapiro, 251 Ga. 55, 303 S.E.2d 10 (1983).

Rezoning constituting taking.

- Rezoning constituted a taking of property when it rendered the property virtually worthless and was done without evaluation of prospective uses for the property, a study of the possible impact of the property owner's use on neighboring property, or consideration of the effect of the rezoning on the value of the property. Bickerstaff Clay Prods. Co. v. Harris County, 89 F.3d 1481 (11th Cir. 1996).

Inconvenience no basis for compensation.

- A present inconvenience or affront to esthetic taste in not having the same view is not a basis for recovery in an action for damage to property as provided against by this paragraph. Brooks County v. Elwell, 63 Ga. App. 308, 11 S.E.2d 82 (1940).

Damage caused by mere temporary inconvenience due to the construction of the project for which the property was taken is not a proper element for consideration in determining just and adequate compensation for condemned realty. If compensable damages to the property is occasioned by the construction process, the remedy is a separate suit for damages. Southwire Co. v. DOT, 147 Ga. App. 606, 249 S.E.2d 650 (1978).

When construction of a public project merely causes personal inconvenience, annoyance, and discomfort to the occupants of property, such property has not been compensably damaged. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 156 Ga. App. 209, 274 S.E.2d 653 (1980).

Increased noise and odors may be compensable.

- The term property comprehends not only the thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy, and dispose of it; and the corresponding right to exclude others from the use. Therefore, no physical invasion damaging to the property need be shown; only an unlawful interference with the right of the owner to enjoy the owner's possession; increased noise and odors may result in an inverse condemnation of property by interfering with the use and enjoyment of land and endangering health. Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978).

Noise, odors, and smoke are compensable in inverse condemnation. Metropolitan Atlanta Rapid Transit Auth. v. Trussell, 247 Ga. 148, 273 S.E.2d 859 (1981).

Special damages must be shown.

- Absent a showing of special damages, that is, physical damage to property different from that kind suffered by the general public from dust, noise, and debris flowing naturally from any major construction and which affect the general public no compensable damage is shown. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 156 Ga. App. 209, 274 S.E.2d 653 (1980).

Elements of inconvenience, resulting from noises of engines, horn blowing, glare of lights and the like from passing traffic on the highway, are not recoverable under this paragraph. Richmond County v. Williams, 109 Ga. App. 670, 137 S.E.2d 343 (1964).

No recovery for damage from trains.

- Evidence as to vibration of the trains, noise, smoke, cinders, and sparks from passing trains, as a result of relocating the track, causing physical damage to abutting property, would be illustrative of the diminution of the market value of the property, but no recovery could be had therefor under this provision as independent elements of damage. Similarly as to the increased fire hazard, greater danger of being struck by the passing trains, and ingress and egress being interfered with are made more difficult. Southern Ry. v. Leonard, 58 Ga. App. 574, 199 S.E. 433 (1938).

Smoke and cinders may be elements of damages. Atlantic & Birmingham Ry. v. McKnight, 125 Ga. 328, 54 S.E. 148 (1906).

Moving cables to build hospital not compensable.

- When the city required the telephone company to move cables from under street in order to build hospital facilities, that act was not such a taking as to mandate payment of compensation. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953), overruled on other grounds, 161 Ga. App. 452, 288 S.E.2d 705 (1982), commented on in 5 Mercer L. Rev. 323 (1954) and 17 Ga. B.J. 117 (1954).

No compensation for depreciation by operation of public work.

- The word "damages," as used in this paragraph does not require compensation to be paid to the owner of the real property for a depreciation in the value of the owner's property caused by the lawful operation of a public work. Evans v. Just Open Gov't, 242 Ga. 834, 251 S.E.2d 546 (1979).

Expense of moving residence.

- This paragraph allows a condemnee conducting a business enterprise on property which is taken under the power of eminent domain to recover of the condemnor, as independent items, damage to the condemnee's business caused by the necessity of moving it to another location, and the expense incidental to removal. This concept is not applicable when the taking is simply that of the location of the condemnee's personal residence, and when the expense of moving is merely a personal expense necessitated by the taking and does not constitute an element of damage to property, either corporeal or incorporeal. City of Gainesville v. Chambers, 118 Ga. App. 25, 162 S.E.2d 460 (1968).

Use of right of way by landowners.

- Landowners are not entitled to the use of the highway right of way for parking of customers' vehicles for service or place for private business. Johnson v. Burke County, 101 Ga. App. 747, 115 S.E.2d 484 (1960).

No claim upon release of state lien.

- The state began proceedings to condemn certain property, pursuant to the provisions of the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO) (O.C.G.A. § 16-14-7), but subsequently filed a release of its RICO lien. There was no cognizable claim under the theory that private property was taken or damaged for public purposes without just and adequate compensation being first paid. The state did not apply any of the property to public use during the period it was in the state's possession and, even assuming arguendo that the seizure resulted in a violation of state and/or federal constitutional rights, there was no basis upon which the state itself, as opposed to its officers, could be held liable for monetary damages on the basis of it. Kelleher v. State, 187 Ga. App. 64, 369 S.E.2d 341 (1988).

Increased water flow through plaintiff's property caused by the breaching of a dam did not constitute a taking within the meaning of the Constitution. Lewis v. DeKalb County, 251 Ga. 100, 303 S.E.2d 112 (1983) (decided under Ga. Const. 1976, Art. I, Sec. III, Para. I).

Damage to building caused by flood waters coming from city streets was an inadvertent event from which no inference could be drawn that the damage was done for a public purpose. Trussell Servs., Inc. v. City of Montezuma, 192 Ga. App. 863, 386 S.E.2d 732 (1989).

Comprehensive sign ordinance providing for removal of nonconforming signs effected an unconstitutional taking of private property without just and adequate compensation. Lamar Adv. of S. Ga., Inc. v. City of Albany, 260 Ga. 46, 389 S.E.2d 216 (1990).

Facial challenges have no ripeness requirement.

- The development association did not show that the tree ordinance had been applied to them in any way, and therefore, raised a facial challenge rather than an "as applied" challenge. Applying these concepts, the development association was not denied all economically viable uses of their property and there was no taking without just compensation. Greater Atlanta Homebuilders Ass'n v. DeKalb County, 277 Ga. 295, 588 S.E.2d 694 (2003).

Owner entitled to compensation for all damage.

- This paragraph is susceptible to no construction except the condemnee is entitled to be compensated for all damage to the condemnee's property and expense caused by the condemnation proceedings. DOT v. Brooks, 153 Ga. App. 386, 265 S.E.2d 610 (1980).

Legislature, within certain bounds, prescribes method of determining measure of compensation. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), commented on in 17 Mercer L. Rev. 471 (1966).

What is just and adequate 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), commented on in 18 Mercer L. Rev. 475 (1967).

Powers of departments of state over owner's right to compensation.

- None of the three separate departments of the state - legislative, executive, or judicial - has the power to reduce or abolish the constitutional right of the owner to receive just and adequate compensation for the owner's private property taken for a public use. Only the judiciary can adjudicate the amount of such compensation and what evidence is relevant and admissible for that purpose. Housing Auth. v. Southern Ry., 150 Ga. App. 4, 256 S.E.2d 606 (1979), aff'd in part, rev'd in part, 245 Ga. 229, 264 S.E.2d 174 (1980).

Damages decided on case-by-case basis.

- Unlike other jurisdictions, Georgia does not statutorily restrict compensable elements of damage in eminent domain proceedings, but instead relies on a system of case-by-case adjudication. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417, 219 S.E.2d 707 (1975).

Condemnor has burden of proving what is just and adequate compensation for property taken. Georgia Power Co. v. Smith, 94 Ga. App. 166, 94 S.E.2d 48 (1956).

Burden of proof is on condemnor to show value of property taken and consequential damages to remainder of the property. Georgia Power Co. v. Smith, 94 Ga. App. 166, 94 S.E.2d 48 (1956).

Word "damage," as used in this paragraph, is intended to cover any damage, either direct or consequential. City of Atlanta v. Dinkins, 46 Ga. App. 19, 166 S.E. 429 (1932).

Compensation for both previous damaging and final taking.

- Under this paragraph, a court will award compensation for both a previous damaging and a final taking where both items of recovery are appropriate. Creel v. City of Atlanta, 399 F.2d 777 (5th Cir. 1968).

Right of first refusal to acquire real property was not compensable.

- Inasmuch as an option does not confer upon the holder an interest in the property, it stands to reason that the possessor of a right of first refusal would not, just by virtue of holding the refusal right, obtain a legally compensable interest in the property itself. Robinson v. Gwinnett County, 290 Ga. 470, 722 S.E.2d 59 (2012).

Holders' right of first refusal to acquire real property was not compensable under Ga. Const. 1983, Art. I, Sec. III, Para. I because at the time of the condemnation, the refusal right under the agreement between the executor and the holders was not invoked or sought to be enforced; the condemnation did not trigger the holders' refusal right since it was unrelated to any choice by the executor to market the property, but rather it was a forced and compulsory sale to the condemning authorities, apparently not contemplated in the agreement. Robinson v. Gwinnett County, 290 Ga. 470, 722 S.E.2d 59 (2012).

Statutory pre-judgment interest rate not part of "just compensation".

- Prejudgment interest rate specified by O.C.G.A. § 32-3-19(c) compensates the condemnee for the use of funds generated in a condemnation action, not for the use of the property condemned; thus, this interest rate is not part of "just compensation," and legislative determination of the rate does not involve improper exercise of a judicial function. Brooks v. DOT, 254 Ga. 60, 327 S.E.2d 175 (1985).

Prejudgment interest is not to be included as a portion of "just and adequate compensation" in a condemnation case. DOT v. Consolidated Equities Corp., 181 Ga. App. 672, 353 S.E.2d 603 (1987).

Trial court properly denied a corporation's motion for prejudgment interest in an inverse condemnation case as just and adequate compensation under the eminent domain paragraph of the Georgia Constitution, Ga. Const. 1983, Art. I, Sec. III, Para. I, did not include prejudgment interest. City of Atlanta v. Landmark Envtl. Indus., 272 Ga. App. 732, 613 S.E.2d 131 (2005).

Burden of producing evidence may shift to condemnee.

- The burden of proving value and damages never shifts from the condemnor, though a burden of producing evidence may arise on the part of the condemnee when the condemnee asserts the greater value or damage. Glover v. DOT, 166 Ga. App. 512, 304 S.E.2d 567 (1983).

Genuine issues of fact existed as to issue of just compensation.

- Trial court erred by granting summary judgment to the Georgia Department of Transportation because there were genuine issues of material fact existing as to just compensation based on the reasonable probability that the sign ordinances would have been amended and the billboard converted to digital and that those changes would have had an appreciable impact on the present market value of the condemnee's property interest. ADC Invs., LLC v. DOT, 325 Ga. App. 685, 754 S.E.2d 648 (2014).

Measure of damages is fair market value where there is no showing of any unique value to condemnee over and above market value. State Hwy. Dep't v. Thomas, 106 Ga. App. 849, 128 S.E.2d 520 (1962), commented on in 14 Mercer L. Rev. 447 (1963).

Recovery not restricted to market value.

- This paragraph does not necessarily restrict the owner's recovery to market value as the term is sometimes used. Housing Auth. v. Holloway, 63 Ga. App. 485, 11 S.E.2d 418 (1940).

Compensation may exceed value of land.

- If just and adequate compensation to owners of the various interests in a parcel of land being condemned requires that the total compensation exceed the value of the land, this presents no difficulty because, under this paragraph, the jury is not only required to render a verdict for an amount which will justly and adequately compensate the condemnees for the value of the land taken, but also for whatever damages result to the condemnees from the condemnation proceeding. State Hwy. Dep't v. Thomas, 115 Ga. App. 372, 154 S.E.2d 812 (1967).

Which value gives "just and adequate compensation."

- In determining just and adequate compensation, market value and actual value will ordinarily be synonymous; if they are not, that value which will give "just and adequate compensation" is the one to be sought by the jury in rendering its verdict. State Hwy. Dep't v. Robinson, 103 Ga. App. 12, 118 S.E.2d 289 (1961).

Just and adequate compensation is the proper measure of damages in a condemnation case, and where the property is shown to have some peculiar value to the condemnee, fair market value may not be the proper method to be used in arriving at a verdict. Gaines v. City of Gainesville, 115 Ga. App. 220, 154 S.E.2d 280 (1967).

Fair market value defined.

- Fair market value is the price a seller who desires, but is not required, to sell and a buyer who desires, but is not required, to buy, would agree is a fair price, after due consideration of all elements reasonably affecting value. Wright v. Metropolitan Atlanta Rapid Transit Auth., 248 Ga. 372, 283 S.E.2d 466 (1981).

Consideration of actual value.

- While market value is the general yardstick in a condemnation proceeding or a suit for compensation in the nature of a condemnation proceeding, there may be circumstances in which market value and actual value are not the same, and in such event the jury may consider the actual value of the land or interest therein appropriated. State Hwy. Dep't v. Robinson, 103 Ga. App. 12, 118 S.E.2d 289 (1961).

Actual value.

- In an eminent domain proceeding, the "just and adequate compensation" due a condemnee is "the value" of the land taken, plus any consequential damages to the remainder if there is a partial taking, which may not be less than "the actual value" of the property taken or damaged. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348, 299 S.E.2d 594 (1983).

The undivided fee rule, i.e., the condemnor need only pay the value of the land that was taken, which is then to be divided among the claimants based upon their respective interests, applies only when the fair market value of the real property taken does, in fact, constitute just and adequate compensation in a particular case. Fulton County v. Funk, 266 Ga. 64, 463 S.E.2d 883 (1995).

The undivided fee rule is not contrary to the principle that each condemnee must be paid for what the condemnee lost, not for what the condemnor has gained; the rule merely insures that each condemnee will not be paid more than the condemnee has lost; abrogating White v. Fulton County, 264 Ga. 393(1), 444 S.E.2d 734 (1994). Fulton County v. Funk, 266 Ga. 64, 463 S.E.2d 883 (1995).

In a total taking of property subject to a leasehold interest, charge to the jury that the amount of just and adequate compensation should "equal the whole - the value of the property" was correct where the valuation evidence dealt only with the fair market value of the property and there was no contention that the property was unique; reversing Funk v. Fulton County, 216 Ga. App. 30, 453 S.E.2d 82 (1995). Fulton County v. Funk, 266 Ga. 64, 463 S.E.2d 883 (1995).

Damages.

- The word "damaged," has a broader meaning than the word "taken," and is designed to impose liability on a condemnor for consequential injuries to property which would not otherwise exist. Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 348, 299 S.E.2d 594 (1983).

Trial court did not err in entering a final judgment on a jury verdict awarding a company and a bank damages in a county's condemnation action because there was no evidence presented of pre-taking damages in anticipation of the taking; the trial court's jury instructions properly explained how the jury was to calculate damages. Gwinnett County v. Ascot Inv. Co., 314 Ga. App. 874, 726 S.E.2d 130 (2012).

Trial court did not commit a manifest abuse of discretion when the court allowed evidence that, as a result of the taking of property, it was no longer feasible to construct student housing because a company and a bank presented expert testimony that the property's value at the time of the taking was affected by the property's probable future use for student housing. Gwinnett County v. Ascot Inv. Co., 314 Ga. App. 874, 726 S.E.2d 130 (2012).

Department of Transportation not required to abide by federal prohibition of compensation for enhancement.

- By requiring the Department of Transportation to be guided by federal law "to the greatest extent practicable" in its condemnation procedures, O.C.G.A. § 32-8-1(b) does not thereby require the department to abide by the federal law's prohibition of compensation for enhancement by reason of taking and does not affect the judiciary's power to determine what constitutes just and adequate compensation. DOT v. White, 173 Ga. App. 68, 325 S.E.2d 397 (1984).

When jury may consider "just and adequate compensation" same as "fair market value."

- Where the whole property owned is taken, no consequential damages are involved, and the building is not being used by the condemnee and no lease or other factor is involved, there is nothing to require the jury to determine "just and adequate compensation" by any other method other than "fair market value." Sutton v. State Hwy. Dep't, 103 Ga. App. 29, 118 S.E.2d 285 (1961).

Where there are no circumstances shown that would make any distinction between just and adequate compensation to the condemnees and the fair market value of the property, a charge that compensation should be measured by fair market value is not error. Gaines v. City of Gainesville, 115 Ga. App. 220, 154 S.E.2d 280 (1967).

Question for consideration is what owner has lost.

- Under this paragraph's requirement that the condemnee be paid "just and adequate compensation" before the condemnee's property is taken, the question which properly addresses itself to the jury's consideration is not "What has the taker gained?" but "What has the owner lost?". State Hwy. Dep't v. Thomas, 115 Ga. App. 372, 154 S.E.2d 812 (1967).

Owner is to be paid just and adequate compensation for the owner's property, that is, value of the property to the owner, not its value to condemnor. Housing Auth. v. Holloway, 63 Ga. App. 485, 11 S.E.2d 418 (1940).

If special damage is caused to property, the owner of property is entitled to recover amount of damages which the owner's property has actually sustained. Franklin v. City of Atlanta, 40 Ga. App. 319, 149 S.E. 326 (1929).

Reproduction cost may always be used as factor involved in valuation of property, together with other factors such as depreciation and the nature of the property interest seized, in determining market value. Housing Auth. v. Savannah Iron & Wire Works, Inc., 91 Ga. App. 881, 87 S.E.2d 671 (1955).

Whole damage to property, past, present, and future, must be assessed in one action, the action taking the place of the statutory provision in cases where property is condemned. Southern Ry. v. Leonard, 58 Ga. App. 574, 199 S.E. 433 (1938).

All purposes to which property may be put are for consideration in determining its value. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), commented on in 17 Mercer L. Rev. 471 (1966).

Compensation when only part of property taken.

- In a proceeding to condemn only a portion of a tract of land the only question to be determined by the jury is the amount which the condemnor should pay as just and adequate compensation for the part taken and consequential damages, if any, to the remaining portion of the tract, as such damages may be offset, but not exceeded, by consequential benefits. Alabama Power Co. v. Chandler, 217 Ga. 550, 123 S.E.2d 767 (1962).

Compensation for uses other than use at time of condemnation.

- Under proper evidence in determining just and adequate compensation for property taken by eminent domain, the jury may consider the value of the property for uses other than that for which it was being used at the time of the condemnation. State Hwy. Dep't v. Robinson, 103 Ga. App. 12, 118 S.E.2d 289 (1961).

Measure of damages when property used for special purpose.

- Adequate compensation for property which the owner has designed for a special use, and of which the owner has been deprived for the public benefit without the owner's consent, may include the cost of the article or its value to the owner for the particular purpose for which the owner designed to use it, or for which it could be used. Housing Auth. v. Holloway, 63 Ga. App. 485, 11 S.E.2d 418 (1940).

Whether property is or is not used for a particular purpose does illustrate its peculiar value and often shows its worth to the condemnee in excess of its market value. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), commented on in 17 Mercer L. Rev. 471 (1966).

Anything that actually enhances value of land must be considered in order to meet the demands of this paragraph 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).

Effect of enhancement of value upon amount of damages.

- Where none of the property, or only a part of it, is actually taken for public use, any enhancement of the market value which arises directly from such public improvement and which accrues directly to the particular property remaining may be set off against the gross damage which may be thus occasioned. Muecke v. City of Macon, 34 Ga. App. 744, 131 S.E. 124 (1925).

If, at the time the market value of the property sought to be condemned is to be estimated, it is known or anticipated that certain improvements will be made in the locality where the property is situated, and this fact serves to enhance the market value of the property, the owner is entitled to the actual market value as effected by reason of the fact that it is known or anticipated that such improvements will thus be made. This is true, though the projected improvements are to be made by the condemning party. Hard v. Housing Auth., 219 Ga. 74, 132 S.E.2d 25 (1963), commented on in 26 Ga. B.J. 349 (1964).

Knowledge of condemnation prior to making improvements.

- Court did not err in restricting counsel from examining witnesses on their knowledge of condemnation prior to making improvements. State Hwy. Dep't v. Owens, 120 Ga. App. 647, 171 S.E.2d 770 (1969), commented on in 22 Mercer L. Rev. 616 (1971).

Knowledge of condemnation at purchase.

- In a condemnation proceeding, the trial court did not abuse the court's discretion in denying the lessees' motion in limine to exclude evidence that the lessees and the lessor knew of the possible condemnation when the lessees sold the property to the lessor because the Georgia Department of Transportation (DOT) sought to use the evidence to discredit the estimate the lessees and lessor made of the property's market value at the time of the taking by challenging the use of the sale as a factor in reaching that estimate used in that way, the evidence of the knowledge of a possible condemnation would bear, at least indirectly, on the question of the just and adequate compensation due the condemnees. CNL APF Partners, LP v. DOT, 307 Ga. App. 511, 705 S.E.2d 862 (2010).

Value to owners of separate interests in property.

- Where there are separate interests to be condemned, the jury, in arriving at just and adequate compensation, is not only authorized but required to consider the value which the thing taken has to the respective owners of the interests being condemned. State Hwy. Dep't v. Thomas, 115 Ga. App. 372, 154 S.E.2d 812 (1967).

Damages must be limited to tract affected.

- In proceedings for condemnation of land, the just compensation which the landowner is entitled to receive for the owner's lands, and damages thereto, must be limited to the tract, a portion of which is actually taken. Southwire Co. v. DOT, 147 Ga. App. 606, 249 S.E.2d 650 (1978).

Enhancement of market value due to public knowledge of impending improvements may be considered in determining the amount of compensation for purposes of this paragraph. DeKalb County v. Fulton Nat'l Bank, 156 Ga. App. 253, 274 S.E.2d 649 (1980).

When evidence authorizes charge on consequential benefits.

- Where the condemnee introduces much evidence to show that, because of the condemnation, it would be required to expend certain amounts on fences, screening hedges, and grading, and thus would be consequentially damaged, and there is no evidence as to any consequential benefits resulting from the improvement, the evidence does not authorize a charge on consequential benefits. Garden Parks v. Fulton County, 88 Ga. App. 97, 76 S.E.2d 31 (1953).

Cost of particular property.

- In some instances one might not be justly compensated for the taking of one's property unless one was awarded an amount adequate to repay the cost of the particular property or to replace just such property as was taken from that person. Housing Auth. v. Holloway, 63 Ga. App. 485, 11 S.E.2d 418 (1940).

No change in right of access.

- Because a plat, which was incorporated into a deed as a representation of the land conveyed to the DOT as a right of way, did not change the rights of access conveyed in the deed, the trial court properly determined that the plat did not convey access rights to a highway; thus, the trial court properly granted summary judgment to the owner in the DOT's subsequent eminent domain action. DOT v. Meadow Trace, Inc., 274 Ga. App. 267, 617 S.E.2d 246 (2005), aff'd, 280 Ga. 720, 631 S.E.2d 359 (2006).

Damages not affected when property received as gift.

- The value of the property damaged is not affected by the fact that it was purchased at a lower price, or received as a gift. Elbert County v. Brown, 16 Ga. App. 834, 86 S.E. 651 (1915).

Jurors are not absolutely bound to accept as correct opinions or estimates of witnesses as to value of property, though uncontradicted by other testimony, but have the right to consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge, throwing light upon the question, and they may, by their verdict, fix either a lower or a higher value upon the property than that stated in the opinions or estimates of the witnesses. Southern v. Cobb County, 78 Ga. App. 58, 50 S.E.2d 226 (1948).

Only if fact finder finds for additional damages does court have right to conduct hearing to determine amount of additional damage. If the fact finder holds against such additional damage for attorney fees and costs of litigation, that phase is ended. DOT v. Shelkeith, Inc., 146 Ga. App. 581, 246 S.E.2d 706, cert. dismissed, 242 Ga. 711, 251 S.E.2d 293 (1978).

Introduction of evidence of similar property sales to prove 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. West v. Fulton County, 95 Ga. App. 320, 97 S.E.2d 785 (1957); Alabama Power Co. v. Chandler, 217 Ga. 550, 123 S.E.2d 767 (1962).

Charging jury on fair market value.

- This paragraph does not contain any allusion to fair market value as a criterion for determining just and adequate compensation, and it is error to charge the jury explicitly or implicitly in this respect. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), commented on in 17 Mercer L. Rev. 471 (1966).

It is proper in condemnation proceeding to instruct the jury that they are not concerned with right and necessity of taking, but in fixing the value of the property taken; the charge should not refer to the willingness or unwillingness of the condemnee. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), commented on in 17 Mercer L. Rev. 471 (1966).

Jury instruction that fictitious "buyer and seller" are condemnor and condemnee. It is error to give jury erroneous conception that fictitious "buyer and seller" referred to in definition of market value are the condemnor and condemnee. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), commented on in 17 Mercer L. Rev. 471 (1966).

In no case in jury instructions should the condemnor be referred to as buyer who is not obliged to buy and condemnee as seller who is not compelled to sell, as would be the fictitious buyers and sellers used to determine market price. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), commented on in 17 Mercer L. Rev. 471 (1966).

Verdict must be supported by evidence.

- Where a verdict is returned for an amount larger than is authorized by the evidence adduced by the condemner, that of the condemnee must support the verdict; that is, the condemnee's proof, added to and supplemented by facts appearing from that of the condemner for that purpose must furnish the factual foundation for the verdict rendered by the jury. Georgia Power Co. v. Smith, 94 Ga. App. 166, 94 S.E.2d 48 (1956).

Landowners' claim in a condemnation action that O.C.G.A. § 22-2-84.1 was unconstitutional because payment of appellee's attorney fees would diminish the amount of compensation they receive and violate their constitutional right to receive just and adequate compensation was without merit; the method for determining just and adequate compensation was a matter of legislative discretion, the assessment of compensation by a special master satisfied the constitutional requirement of just and adequate compensation for taking property and, by conditioning an appeal to the superior court on the payment of costs, O.C.G.A. § 22-2-84.1 did not violate a property owner's right to receive just and adequate compensation before a taking of the owner's property occurred. Martin v. Henry County Water & Sewerage Auth., 279 Ga. 197, 610 S.E.2d 509 (2005).

Editor's notes.

- Some of the cases noted under this heading were decided prior to the 1983 Constitution, which authorizes the General Assembly to provide by law for payment of litigation expenses, including attorneys' fees.

Paragraph does not require award of attorneys' fees. DeKalb County v. Trustees, Decatur Lodge No. 1602, 242 Ga. 707, 251 S.E.2d 243 (1978), commented on in 31 Mercer L. Rev. 367 (1979).

Attorneys' fees and expenses are not embraced within just compensation for land taken by eminent domain. Bowers v. Fulton County, 122 Ga. App. 45, 176 S.E.2d 219 (1970), commented on in 17 Mercer L. Rev. 471 (1966); 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. 2d 372 (1981).

Award for expenses of expert witnesses not required.

- Damages as just and adequate compensation for property taken in the exercise of eminent domain does not include expenses for expert witnesses and legal counsel. Shelton v. Housing Auth., 227 Ga. 824, 183 S.E.2d 353 (1971).

Award determined by value of property.

- No provision is made in this paragraph or by statute that authorizes the award of attorneys' fees and expenses of litigation as a part of just compensation, but the award is determined by the value of the property taken or damaged. Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971);.

Recovery of attorneys' fees not prohibited.

- The recovery of attorneys' fees in an eminent domain case is neither required by this paragraph nor authorized by statute. On the other hand, nothing seems to prohibit such a recovery within the constitutional concepts of due process. Housing Auth. v. Southern Ry., 150 Ga. App. 4, 256 S.E.2d 606 (1979), aff'd in part, rev'd in part, 245 Ga. 229, 264 S.E.2d 174 (1980).

Property owner's appeal permitted by O.C.G.A. § 22-2-100 et seq., does not provide for a constitutional right to jury trial on the issue of just and adequate compensation; therefore, an award of attorney fees under O.C.G.A. § 22-2-84.1(a) does not violate the property owner's constitutional right to receive just and adequate compensation before a taking of the owner's property occurs. 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).

For decisions holding that "just and adequate compensation" includes attorneys' fees, see White v. Georgia Power Co., 237 Ga. 341, 227 S.E.2d 385 (1976), overruled, DeKalb County v. Trustees, Decatur Lodge No. 1602, 242 Ga. 707, 251 S.E.2d 243 (1978); DOT v. Doss, 238 Ga. 480, 233 S.E.2d 144 (1977); City of Macon v. Mabry, 143 Ga. App. 203, 238 S.E.2d 123 (1977); City of Atlanta v. Atlanta Gas Light Co., 144 Ga. App. 157, 240 S.E.2d 730 (1977); Georgia Power Co. v. Whitmire, 146 Ga. App. 29, 245 S.E.2d 324 (1978); City of Atlanta v. Rosebush, 146 Ga. App. 99, 245 S.E.2d 440 (1978); DOT v. Shelkeith, Inc., 146 Ga. App. 581, 246 S.E.2d 706, cert. dismissed, 242 Ga. 711, 251 S.E.2d 293 (1978).

Party in condemnation proceeding acquired no vested right in attorneys' fees awarded to that party through judgment of trial court. DOT v. Kendricks, 244 Ga. 613, 261 S.E.2d 391 (1979).

General Assembly has not provided for jury trial on issue of amount of attorneys' fees and litigation costs. DOT v. Doss, 238 Ga. 480, 233 S.E.2d 144 (1977).

O.C.G.A. § 9-15-14, read in conjunction with Ga. Const. 1983, Art. I, Sec. III, Para. I, permits trial courts to award attorney fees to condemnees in eminent domain cases. DOT v. Woods, 269 Ga. 53, 494 S.E.2d 507 (1998).

Distinction from recovery for actual value.

- The condemnee is entitled to be compensated for all damage done to the condemnee's property and expenses caused by the condemnation proceedings. Such damages and expenses are separate and distinct items from the amount to which the condemnee is entitled to recover as the actual value of the condemnee's building. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), commented on in 17 Mercer L. Rev. 471 (1966).

There are only two elements of damages to be considered in a condemnation proceeding: first, the market value of the property actually taken; and, 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, including its proper maintenance and operation, and the measure of these consequential damages is the diminution in the market value of the remainder of the property proximately arising from these causes. DOT v. Simon, 151 Ga. App. 807, 261 S.E.2d 710 (1979), aff'd, 245 Ga. 478, 265 S.E.2d 777 (1980).

Consequential damages may be added to but cannot be deducted from the actual value of the part taken. DOT v. Old Nat'l Inn, Inc., 179 Ga. App. 158, 345 S.E.2d 853, cert. vacated, 256 Ga. 315, 349 S.E.2d 748 (1986).

Measure of consequential damages.

- Generally speaking, measure of consequential damages is diminution, if any, of market value of property not taken, caused by taking of part which is taken and devoting of it to purposes for which it is condemned. Wright v. Metropolitan Atlanta Rapid Transit Auth., 248 Ga. 372, 283 S.E.2d 466 (1981).

Proper measure of consequential damages to remainder is diminution, if any, in market value of remainder in its circumstance just prior to time of taking compared with its market value in its new circumstance just after time of taking. Wright v. Metropolitan Atlanta Rapid Transit Auth., 248 Ga. 372, 283 S.E.2d 466 (1981).

Because an appraiser could use the cost to cure as a factor in determining the value of the remainder after the taking, and because the appraiser's testimony was sufficient to show consequential damages, the trial court properly denied the motion for a directed verdict by the Department of Transportation; in addition, the trial court properly admitted a surveyor's testimony based on the extensive basis for the testimony, the explanation of discrepancies, and the methodology used. DOT v. Ogburn Hardware & Supply, Inc., 273 Ga. App. 124, 614 S.E.2d 108 (2005).

Consequential damages to untaken property included.

- The amount of damages shall include not only the value of the property taken, but shall also compensate for the consequential damage to the remaining property not taken. These consequential damages result from the actions of the state in severing a portion from the body of the condemnee's land and interfering with the condemnee's use and enjoyment of the remaining property. State Hwy. Dep't v. Irvin, 100 Ga. App. 624, 112 S.E.2d 216 (1959).

No authority for recovery of punitive damages.

- Since damages recoverable in an action by a property owner whose property is harmed by a county for public purposes is a substitute for damages recoverable in a condemnation action, there is no constitutional or statutory authority for the recovery of punitive damages against a county. Fulton County v. Baranan, 240 Ga. 837, 242 S.E.2d 617 (1978).

Damages must arise from condemnation.

- If a condemnee is to recover consequential damages to the remainder of the condemnee's property when only a part is taken, it must appear that the damages to the remainder proximately and naturally arose from the condemnation and taking of the condemnee's own property. DOT v. Simon, 151 Ga. App. 807, 261 S.E.2d 710 (1979), aff'd, 245 Ga. 478, 265 S.E.2d 777 (1980).

Consequential damages to remainder must be sought during proceedings establishing value of land taken.

- Where part of a tract is taken, consequential damages to remainder must be sought, if at all, during proceedings to establish value of land taken. Wright v. Metropolitan Atlanta Rapid Transit Auth., 248 Ga. 372, 283 S.E.2d 466 (1981).

Consequential damages to contiguous tracts of land which have different ownership. Consequential damages cannot be awarded in eminent domain case to contiguous tracts of land which have different ownership from tract in which the taking occurs such as where the condemned property is owned jointly and a contiguous tract is owned in fee by one of the co-owners of the condemned property. Georgia Power Co. v. Bray, 232 Ga. 558, 207 S.E.2d 442 (1974).

Though consequential damages to a contiguous tract of land having a different ownership from that in which the taking occurs may be real and may in fact exist, a separate owner's claim for consequential damages to that owner's land contiguous to the tract where the taking occurs cannot be asserted in a condemnation action. Consequential damages to "the remainder of the tract in which the taking occurs" are the only consequential damages that may be recovered in the condemnation action. Southwire Co. v. DOT, 147 Ga. App. 606, 249 S.E.2d 650 (1978); DOT v. Simon, 151 Ga. App. 807, 261 S.E.2d 710 (1979), aff'd, 245 Ga. 478, 265 S.E.2d 777 (1980).

Burden of proof on condemnor.

- 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).

Condemning party is not allowed to introduce evidence of permissive use of land of another in attempts to lessen consequential damages, nor may the condemnee increase in damages by the same means. Southwire Co. v. DOT, 147 Ga. App. 606, 249 S.E.2d 650 (1978).

Ownership of other lands without significance.

- It is solely by virtue of ownership of the tract invaded that an owner is entitled to incidental damages. The owner's ownership of other lands is without legal significance. Southwire Co. v. DOT, 147 Ga. App. 606, 249 S.E.2d 650 (1978).

Measure of damages for loss of use of leased property.

- The correct measure of damage to one holding a 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).

The correct measure of damages for the loss of use of leased property is the diminution in the market value of the leasehold during the remainder of the unexpired term of the lease, less any rents to be paid by the lessee. McGhee v. Floyd County, 95 Ga. App. 221, 97 S.E.2d 529 (1957).

Effect of diminution of rental value.

- While the plaintiff is entitled to recover only for the diminution in the market value of the property and may not recover for any decrease in the rentals, the difference in the rental value of the property before the improvements were begun and after they were completed might be set up as a circumstance tending itself to show a diminution in the value of the property, or to corroborate other evidence to that effect. Southern Ry. v. Leonard, 58 Ga. App. 574, 199 S.E. 433 (1938).

When market value insufficient.

- Where a condemnation proceeding is instituted against land which is subject to a lease contract for a term of years, and where, because of the peculiar circumstances of the case, an award of damages measured solely by the fair market value of the land will not likely afford to the condemnees, the lessor and lessee, just and adequate compensation for their respective interests in the land, it is not error for the trial court, in charging the jury, to instruct them that they might find as one item to be considered in arriving at their lump-sum award as damages for the land and interest in the land taken, the fair market value to the lessee of its leasehold interest in the land condemned. State Hwy. Dep't v. Thomas, 115 Ga. App. 372, 154 S.E.2d 812 (1967).

Compensation when lessee forced to move.

- Where the lessee was the tenant holding an estate for years, having remaining more than a year of the leasehold interest plus an option to purchase which would have been exercised except for the condemnation proceedings, and it was forced to move because the land remaining after the taking was inadequate for the business purposes, the result of these factors is a total eviction. Accordingly, the lessee was entitled to just and adequate compensation, including moving expenses whether the latter be thought of eo nomine or as a negative aspect of the leasehold value. DeKalb County v. Fulton Nat'l Bank, 156 Ga. App. 253, 274 S.E.2d 649 (1980).

For decision holding moving expenses for personal property not recoverable as damages per se, see Housing Auth. v. Savannah Iron & Wire Works, Inc., 90 Ga. App. 150, 82 S.E.2d 244 (1954).

Lessee may recover for a partial taking, including the removal of gasoline storage tanks from the land condemned to another part of the same premises. DeKalb County v. Fulton Nat'l Bank, 156 Ga. App. 253, 274 S.E.2d 649 (1980).

Evidence of offer of compromise.

- In a condemnation proceeding, the trial court did not err in denying the lessees' motion in limine to exclude evidence of an alleged pre-condemnation offer of compromise contained in a letter because the letter, which was sent to an appraiser and not to the Georgia Department of Transportation, was not an inadmissible offer of compromise under former O.C.G.A. § 24-3-37 (see now O.C.G.A. § 24-4-408); no condemnation proceeding was pending when the letter was sent, the terms of the letter sought to persuade against the condemnation of the property, or, alternatively, to ensure that the lessees would receive the full amount that the lessees believed would be the lessees' just and adequate compensation if condemnation occurred, and the letter did not propose a compromise of that amount. CNL APF Partners, LP v. DOT, 307 Ga. App. 511, 705 S.E.2d 862 (2010).

Cause of fire relevant to issue of just and adequate compensation.

- In a condemnation proceeding, the trial court erred in denying the lessees' motion in limine to exclude evidence of the cause of the fire that damaged the restaurant that was on the real property at issue because evidence concerning the reasons giving rise to the uncertainty in insurance coverage (i.e., the cause of the fire), as opposed to the fact of uncertainty, was not relevant to the issue of just and adequate compensation. CNL APF Partners, LP v. DOT, 307 Ga. App. 511, 705 S.E.2d 862 (2010).

Interest of mortgagee.

- If there is no showing in the record that the mortgagee cannot reinvest its funds at an interest rate equivalent to or higher than the interest rate provided for in the mortgage, it has suffered no real damage when the secured property is condemned. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417, 219 S.E.2d 707 (1975).

Mortgagee not entitled to prepayment premium.

- In the absence of a provision entitling the mortgagee to the prepayment premium in case of a condemnation of the property, the mortgagee is not entitled to the prepayment premium when such a contingency occurs. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417, 219 S.E.2d 707 (1975).

Measure of damages to abutting property caused by raising grade of street is the difference between the market value of the property before and after the change of the grade. Mayor of Macon v. Daley, 2 Ga. App. 355, 58 S.E. 540 (1907).

Measure of damages for obstruction in street.

- Where an obstruction in the street interferes with the owner's right to the use of the street, and is authorized by law and is lawfully and not negligently maintained and is permanent in character, and causes a diminution in the value of the property, the owner of the lot may recover, of the person erecting and maintaining the obstruction, damages only in difference between the value of the owner's property before the obstruction was erected and afterwards. Felton v. State Hwy. Bd., 47 Ga. App. 615, 171 S.E. 198 (1933), later appeal, 57 Ga. App. 930, 181 S.E. 506 (1935).

Allegation of interference with access material.

- Defendant is liable for any interference with the right of ingress and egress to the petitioner's property, and this allegation would be material in determining any diminution in the market value of the property by reason of such interference. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 156 Ga. App. 209, 274 S.E.2d 653 (1980).

Damages from street grading may be proved.

- Cost of filling in lots, to raise them to the level of the street, may be proved upon this general question of diminution of the market value. Williamson v. Mayor of Savannah, 19 Ga. App. 784, 92 S.E. 291 (1917).

Measure of damages for property taken by erection of dam.

- Any damage to, or destruction of, property resulting from exercise of lawful authority of a quasi-public corporation in the conduct of its franchise through the proper erection and proper and prudent operation of a dam, must be compensated for under this paragraph, for which the sole measure of damages is the diminution in the market value of the property thus taken or damaged and not as for a continuing, abatable nuisance, for which the measure of damages is generally stated to be the diminution of the yearly rental value of the property during its existence and within the statute of limitation plus any actual damage sustained, except where it affirmatively appears that because of the existence of the nuisance the property has been rendered permanently useless, even if the nuisance were abated, in which case the measure of damage would be, of necessity, the diminution of the market value of the property. Warren v. Georgia Power Co., 58 Ga. App. 9, 197 S.E. 338 (1938).

Relocation expenses part of just and adequate compensation.

- The enactment of O.C.G.A. § 32-8-1 does not alter the fact that relocation expenses, whether awarded judicially or administratively, are still a part of the "just and adequate compensation" guaranteed to condemnees under the Constitution. DOT v. Gibson, 251 Ga. 66, 303 S.E.2d 19 (1983).

Date of return of award of assessors as date of fixing value.

- This paragraph does not require prepayment until there is some step in this process of legal taking which may act as a point to determine value, for one cannot pay for that which has no value or an entirely unascertained value. That point arrives in the case when the award of the assessors is returned. State Hwy. Dep't v. Wilson, 98 Ga. App. 619, 106 S.E.2d 544 (1958).

Jury not free to determine other date as date of taking.

- 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).

Charge held reversible error.

- Where the charge instructs the jury to determine consequential damages both "as of the date of taking" and at the time "the improvements are made," and where these times did not coincide, the charge was internally inconsistent and constituted reversible error. Wright v. Metropolitan Atlanta Rapid Transit Auth., 248 Ga. 372, 283 S.E.2d 466 (1981).

Negligent or improper construction following condemnation judgment.

- Condemnation judgment precludes subsequent action for consequential damages unless they result from negligent or improper construction. Wright v. Metropolitan Atlanta Rapid Transit Auth., 248 Ga. 372, 283 S.E.2d 466 (1981).

Where there is a physical taking of land, just and adequate compensation for the taking is determined as of the date of taking. Wright v. Metropolitan Atlanta Rapid Transit Auth., 248 Ga. 372, 283 S.E.2d 466 (1981).

Diminution in value of remainder, constituting consequential damages should be measured as of date of taking. Wright v. Metropolitan Atlanta Rapid Transit Auth., 248 Ga. 372, 283 S.E.2d 466 (1981).

Effect of death of property owner.

- An action against a city by reason of a change in the grade of a street whereby the abutting property is diminished in its market value does not sound in tort, and the right of action does not abate by the death of the property owner before the bringing of the suit, if such action is brought by the legal representative of the owner within the statute of limitations. Harbour v. City of Rome, 54 Ga. App. 97, 187 S.E. 231 (1936), aff'd, 184 Ga. 37, 190 S.E. 364 (1937).

Jurisdiction.

- Because plaintiff landfill developer had not been able to pursue its inverse condemnation claim in state court (action had been removed), the district court lacked jurisdiction over the developer's takings and inverse condemnation claims under the Fifth Amendment to the U.S. Constitution and Ga. Const. 1983, Art. I, Sec. III, Para. I, because plaintiff had not availed itself of the state-law process, its takings and inverse condemnation claims were not ripe for federal court review. BFI Waste Sys. of N. Am. v. Dekalb County, 303 F. Supp. 2d 1335 (N.D. Ga. 2004).

Court not required to take judicial notice of independent contractor status.

- In a suit by a property owner for damage to the owner's property caused by highway construction, the requirement that competitive bids be taken on highway maintenance and construction contracts does not require the court to take judicial notice of the fact that the construction was done by an independent contractor. Richmond County v. Williams, 109 Ga. App. 670, 137 S.E.2d 343 (1964).

Use of term "fair market value" rather than "fair and reasonable value" in court's instruction, when referring to property being condemned, was not improper. Vann v. State Hwy. Dep't, 95 Ga. App. 243, 97 S.E.2d 550 (1957).

Condemnee's liability for interest on difference in amount of judgment.

- When, in a condemnation proceeding under the "three assessor" law as contained in former Code 1933, Chapter 36 (see now O.C.G.A. Title 22), the amount of the final judgment was less than the award made by the assessors, the condemnee was 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).

Department of Transportation's alleged influence of the county board of commissioners' zoning decisions against plaintiff was a wrong that could not be redressed in a condemnation proceeding because the final official decision to deny plaintiff's zoning requests was made by the county board of commissioners, not the DOT, and only the board could be held accountable for those decisions. DOT v. Poole, 179 Ga. App. 638, 347 S.E.2d 625 (1986).

Nature of right generally.

- Where property has been taken or damaged, for public purposes, by public authorities or a quasi-public corporation, the party injured, may bring one action therefor, within the time required by the statute of limitations, dating from the time of construction, not in tort for a nuisance, but to recover the direct damage inflicted. Georgia Power Co. v. Moore, 47 Ga. App. 411, 170 S.E. 520 (1933).

An action may be brought under this paragraph for the mere taking or damaging of real property without just and adequate compensation being first paid; an action sounding in tort may be brought against a municipal corporation for the creation or maintenance of a nuisance, without reference to any question of negligence where danger to health or life is involved; and an action sounding in tort may be brought against a municipal corporation for the creation or maintenance of a nuisance where the defendant is negligent, even though the act was authorized to be done. Southland Coffee Co. v. City of Macon, 60 Ga. App. 253, 3 S.E.2d 739 (1939).

When public authorities properly erect and properly maintain improvements authorized by law, the only right of action which is maintainable is that conferred by this paragraph; it does not sound in tort. Felton v. State Hwy. Bd., 51 Ga. App. 930, 181 S.E. 506 (1935).

Independent suit for damages.

- There is a broad distinction between the taking by deprivation, i.e., dominion and possession of private property, and the damaging of private property by public construction. In such cases, an independent suit for damages is the proper method to seek recovery for such damages rather than in the condemnation suit. Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 156 Ga. App. 209, 274 S.E.2d 653 (1980).

Effect of allegations of violations of constitutional rights.

- The contention in a damage case that the alleged taking of private property for public purposes is in violation of the due process clause of the state (Ga. Const. 1976, Art. I, Sec. I, Para. I [see Ga. Const. 1983, Art. I, Sec. I, Para. I]) and federal (U.S. Const., amend. 14) Constitutions does not make it one that involves the construction of the state and federal Constitutions. City of Atlanta v. Donald, 220 Ga. 98, 137 S.E.2d 294 (1964).

Jury instructions relevant to tort action inappropriate.

- In a suit to recover compensation for the damaging of real property as the consequence of a public improvement, instructions as to the measure of damages and relevant to a tort action are not appropriate. Clarke County Sch. Dist. v. Madden, 99 Ga. App. 670, 110 S.E.2d 47 (1959).

Notice and hearing not required prior to taking.

- 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 by the owner before such determination can be made. State Hwy. Dep't v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964).

Owner must have opportunity to be heard on issue of value.

- The right of eminent domain underlies and is therefor superior to all rights of private property, and neither notice nor an opportunity to be heard are a prerequisite to the exercise of such power, provided only that the owner have an opportunity, in the course of the condemnation proceeding, to be heard and to offer evidence as to the value of the land taken. State Hwy. Dep't v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964).

There is no constitutional right to trial by jury in eminent domain cases. DOT v. Doss, 238 Ga. 480, 233 S.E.2d 144 (1977).

When action barred by statute of limitations.

- Where actual damage results to abutting property and is compensable under this paragraph, an action to recover such damage must be brought within four years from the date the right of action accrues. Southern Ry. v. Leonard, 58 Ga. App. 574, 199 S.E. 433 (1938).

Where the work which resulted in damage to plaintiff's property, for which the plaintiff would have been entitled to recover under this paragraph, was done more than four years previous to the bringing of the action, the suit was barred by the statute of limitations. Lawrence v. City of La Grange, 63 Ga. App. 587, 11 S.E.2d 696 (1940).

Date of taking.

- In determining whether plaintiff filed its inverse condemnation claim within the statute of limitations, the relevant time is the date upon which the taking occurred. Speer v. Miller, 864 F. Supp. 1294 (N.D. Ga. 1994); Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 472 S.E.2d 499 (1996).

Taking by continuous government activity.

- In inverse condemnation cases, where there is continuous government activity that damages private property, a "date of stabilization" of the impact is utilized as the date of taking, i.e., such date is measured as the point in time when the damaging activity reached a level which substantially interferes with the owner's use and enjoyment of the owner's property. Hulsey v. DOT, 230 Ga. App. 763, 498 S.E.2d 122 (1998).

Limitation on action for change of street grade.

- An action against a street railway for damage caused by changing the street grade must be brought within four years from the time the work is completed for all damages, both past and future. Smith v. Central of Ga. Ry., 22 Ga. App. 572, 96 S.E. 570 (1918); Sheppard v. Georgia Ry. & Power Co., 31 Ga. App. 653, 121 S.E. 868 (1924).

Limitation on inverse condemnation claim based on taking "easement of flight."

- Where defendant city, as operator of an airport, demonstrated that there had been no increase in the frequency of planes flying over plaintiff's property or change in the nature of the use of the airspace, and that its "easement of flight" was established more than four years prior to the date on which plaintiff filed its inverse condemnation claim, such claim was barred by the statute of limitations. Speer v. Miller, 864 F. Supp. 1294 (N.D. Ga. 1994).

All claims against county for taking or damaging private property for public uses must be filed within 12 months, and suit thereon for the depreciation in the market value must be instituted within the period of limitations stipulated by the law, and it is not the policy of the law to permit the bringing of suits against counties from time to time for damages which might result by reason of negligently constructed public improvements constituting a nuisance. Bibb County v. Green, 42 Ga. App. 552, 156 S.E. 745 (1931).

Necessity of allegations of damage.

- In an action for damages to private property instituted under this paragraph and former Code 1933, § 95-1710, allegations showing the nature of the cause, describing the property damaged, and relating the manner in which the property was damaged in the construction of a designated state highway, were proper and necessary to set forth the plaintiff's case. Bartow County v. Darnell, 95 Ga. App. 193, 97 S.E.2d 610 (1957).

Necessity of allegation that change made under authority of law.

- The constitutional provision or statute under which the county is alleged to be liable need not be specifically referred to, but the petition seeking a recovery for the taking or damaging of property must allege facts which, if proved, entitle the plaintiff to recover, and one of the facts it is necessary to prove is that the alleged change was made under the authority of officers of the county who were empowered by law to do the work complained of in the petition. If this is shown, then the county could not defend on the ground that its taking, in the conduct of its business, was for an unlawful purpose. McGhee v. Floyd County, 95 Ga. App. 221, 97 S.E.2d 529 (1957).

Allegations of negligence unnecessary.

- While the authority of the city to establish fire stations and appurtenances thereto for the purpose of providing the citizens with fire protection is a governmental function and for mere negligence or errors committed by the officers or employees of the city in performing such function, the city is not liable where the city damages or takes the private property of one as a result of the performance of such governmental functions, a right of action under this paragraph accrues. In such a case, allegations of negligence on the part of the defendants are not necessary and will be treated as surplusage. City of Atlanta v. Kenny, 83 Ga. App. 823, 64 S.E.2d 912 (1951).

Effect of right of review.

- A judgment cannot be treated as final so long as either of the parties has the right to have the same reviewed by the appellate court; and if it is not so reviewed, it is not final until the appellate court judgment is made the judgment of the trial court. 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).

Effect of right to file motion for new trial.

- No judgment or decree can, under the system, be said to be final until the time prescribed by law in which a motion for a new trial may be made, or a writ of error seeking to set aside such judgment has expired. 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).

No finality of fixing of compensation until judgment final.

- When lands are being condemned for road and street purposes, there is no finality of the fixing and determining of the compensation until the judgment itself becomes final by a failure to appeal within the time provided by law, or upon a final disposition of an appeal from the judgment. State Hwy. Dep't v. Howard, 119 Ga. App. 298, 167 S.E.2d 177 (1969).

Condemnation award, upon becoming final, is conclusive as to all damages whether foreseen or not resulting from proper construction. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967).

Effect of previous award on right of action.

- Private property must be negligently taken or damaged for a public purpose in order for the action to prevail against the defense that recovery is barred by a previous condemnation award. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967).

Payment of compensation prior to moving for new trial.

- There is no provision of law requiring the payment of compensation into the registry of the court which is awarded to a new party for the first time, by a jury on appeal, as a prerequisite to an appeal to this court or the Supreme Court. State Hwy. Dep't v. Holleman, 110 Ga. App. 256, 138 S.E.2d 325 (1964).

It is not condition precedent that increased compensation be paid before moving for new trial or before appealing from judgment on verdict or from denial of new trial. 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).

For decision holding that payment of increased compensation by condemnor is condition precedent to valid appeal, see City of Gainesville v. Loggins, 224 Ga. 114, 160 S.E.2d 374 (1968).

Owner's recovery not restricted to market value.

- The provisions in this paragraph and former Code 1933, §§ 36-104 and 36-302 (see now O.C.G.A. §§ 22-1-5 and22-1-6) as to just and adequate compensation do not necessarily restrict the owner's recovery to market value; the owner is entitled to just and adequate compensation for the owner's property; that is, the value of the property to the owner, not its value to the state. 1958-59 Op. Att'y Gen. p. 271.

No distinction between temporary and permanent relocations.

- No distinction can be drawn, as to obligation to pay cost of removal of facilities on right-of-way, between temporary relocations and permanent relocations. 1957 Op. Att'y Gen. p. 132.

Department of Transportation may be liable for damages to private property caused by public improvements without the property adjoining or abutting the highway improvement. 1969 Op. Att'y Gen. No. 69-239; 1969 Op. Att'y Gen. No. 69-397.

Landowner is not entitled to award of damages in condemnation case based upon mere inconvenience and circuity of travel; if the inconvenience adversely affects the market value of the remaining property, and such inconvenience is continuous and a permanent incident of the highway, then such damages may be considered, but only as such inconveniences affect the market value of the remaining property and not as a separate and independent item of damages. 1969 Op. Att'y Gen. No. 69-50.

Business entitled to moving expenses.

- A 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.

Moving of personal property constitutes compensable damage.

- The compulsory moving of personal property against the owner's will, in order to allow construction of roads on real estate acquired after the personal property in question was pledged on that real estate, constitutes "damage" to such personal property within the meaning of this paragraph. 1957 Op. Att'y Gen. p. 141 (see Ga. Const. 1983, Art. I, Sec. III, Para. I).

Measure of damages for moving property.

- The measure of the damages in the matter of compulsory removal of personal property would include the transportation items, any "leakage" in transit, and any depreciation in value in transit. 1957 Op. Att'y Gen. p. 141.

Removal of facilities located on railroad right-of-way.

- Department of Transportation may bear expense (or that part which is not borne by railroad or United States government) of removal of facilities located on railroad right-of-way. 1957 Op. Att'y Gen. p. 132.

No authorization to pay for removal of telephone line.

- The Department of Transportation is not authorized to pay for the removal of a telephone line of a rural telephone co-operative from a highway right-of-way. 1957 Op. Att'y Gen. p. 139.

Department of Transportation's liability for reducing highway access.

- The Department of Transportation is liable for damages to the remaining property from which a right of way was acquired when the damages or diminution in value is a result of change of access or a reduction of access to any particular highway. 1963-65 Op. Att'y Gen. p. 521.

Use of inactive railroad right-of-way as trail.

- Under ICC procedures, a railroad may enter into an agreement which allows interim trail use of an inactive right-of-way without triggering reversionary interests under state law; absent such agreement, upon approval of abandonment by the ICC, state law determines the nature, scope, and duration of the interest held by the railroad. 1992 Op. Att'y Gen. No. U92-11.

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 1 et seq., 7.

C.J.S.

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

ALR.

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

Damage to property from proximity of cemetery as "damage" within constitutional provision against taking or damaging property without compensation, 36 A.L.R. 527.

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

Right to and measure of compensation for animals or trees destroyed to prevent spread of disease or infection, 67 A.L.R. 208.

Tax on automobile, or on its use, for cost of road or street construction, improvement, or maintenance, 68 A.L.R. 200.

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.

Power to condemn, or authorize the condemnation of, capital stock of a public utility, 81 A.L.R. 1071.

Constitutionality, construction and application of statute authorizing condemnation of property by cross action, 130 A.L.R. 1226.

Compensation for property confiscated or requisitioned during war, 137 A.L.R. 1290; 144 A.L.R. 1506; 147 A.L.R. 1297; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 149 A.L.R. 1474; 150 A.L.R. 1417; 150 A.L.R. 1418; 150 A.L.R. 1480; 151 A.L.R. 1453; 151 A.L.R. 1473; 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.

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.

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.

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.

Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement or specification, 65 A.L.R.2d 143.

Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.

Admissibility on issue of value of real property of evidence of sale price of other real property, 85 A.L.R.2d 110.

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.

Propriety and effect, in eminent domain proceedings, of instructions to the jury as to landowner's unwillingness to sell property, 20 A.L.R.3d 1081.

Eminent domain: charging landowner with rent or use value of land where he remains in possession after condemnation, 20 A.L.R.3d 1164.

Right of attorney appointed by court for indigent accused to, and court's power to award, compensation by public, in absence of statute or court rule, 21 A.L.R.3d 819.

Eminent domain: cost of substitute facilities as measure of compensation 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 of damages for condemnation of cemetery lands, 42 A.L.R.3d 1314.

Propriety of court's consideration of ecological effects of proposed project in determining right of condemnation, 47 A.L.R.3d 1267.

Plotting or planning in anticipation of improvement as taking or damaging of property affected, 49 A.L.R.3d 127.

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.

Eminent domain: right to condemn property owned or used by private educational, charitable, or religious organization, 80 A.L.R.3d 833.

Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.

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.

Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542.

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.

Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.

Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding, 23 A.L.R.4th 631.

Damages resulting from temporary conditions incident to public improvements or repairs as compensable taking, 23 A.L.R.4th 674.

Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.

Eminent domain: public taking of sports or entertainment franchise or organization as taking for public purpose, 30 A.L.R.4th 1226.

Eminent domain: measure and elements of damages or compensation for condemnation of public transportation system, 35 A.L.R.4th 1263.

Validity, construction, and application of state relocation assistance laws, 49 A.L.R.4th 491.

Inverse condemnation state court class actions, 49 A.L.R.4th 618.

Court appointment of attorney to represent, without compensation, indigent in civil action, 52 A.L.R.4th 1063.

Eminent domain: industrial park or similar development as public use justifying condemnation of private property, 62 A.L.R.4th 1183.

Eminent domain: compensability of loss of visibility of owner's property, 7 A.L.R.5th 113.

Abutting owner's right to damages for limitation of access caused by traffic regulation, 15 A.L.R.5th 821.

Right to compensation for real property damaged by law enforcement personnel in course of apprehending suspect, 23 A.L.R.5th 834.

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.

Application of Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), to "Public Use" restrictions in federal and state constitutions takings clauses and eminent domain statutes, 21 A.L.R.6th 261.

Admissibility of hospital records under Federal Business Records, 9 A.L.R. Fed. 457.

Validity of extraterritorial condemnation by municipality, 44 A.L.R.6th 259.

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

Zoning scheme, plan, or ordinance as temporary taking, 55 A.L.R.6th 635.

Loss or impairment of landowner's access to existing controlled-access road or highway as compensable taking absent government condemnation or occupation of landowner's realty, 93 A.L.R.6th 363.

Determination whether exaction for property development constitutes compensable taking, 8 A.L.R.7th 7.