2020 Georgia Code
Title 22 - Eminent Domain
Chapter 1 - General Provisions
§ 22-1-2. Nature of Right of Eminent Domain; Property to Be Put to Public Use

1. The right of eminent domain is the right of this state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of this state on account of public exigency and for the public good. Thus, in time of war or insurrection the proper authorities may possess and hold any part of the territory of this state for the common safety. Notwithstanding any other provisions of law, except as provided in Code Section 22-1-15, neither this state nor any political subdivision thereof nor any other condemning authority shall use eminent domain unless it is for public use. Public use is a matter of law to be determined by the court and the condemnor bears the burden of proof.
2. Except as provided in Code Section 22-1-15, no condemnation shall be converted to any use other than a public use for 20 years from the initial condemnation.
3. 1. Except as provided in Code Section 22-1-15, if property acquired through the power of eminent domain from an owner fails to be put to a public use within five years, the former property owner may apply to the condemnor or its successor or assign for reconveyance or quitclaim of the property to the former property owner or for additional compensation for such property. For purposes of this subsection, property shall be considered to have been put to a public use at the point in time when substantial good faith effort has been expended on a project to put the property to public use, notwithstanding the fact that the project may not have been completed. The application shall be in writing, and the condemnor or its successor or assign shall act on the application within 60 days by:
      1. Executing a reconveyance or quitclaim of the property upon receipt of compensation not to exceed the amount of the compensation paid by the condemnor at the time of acquisition; or
      2. Paying additional compensation to the former owner of the property, such compensation to be calculated by subtracting the price paid by the condemnor for the property at the time of acquisition from the fair market value of the property at the time the application is filed.
   2. If the condemnor fails to take either action within 60 days, the former property owner may, within the next 90 days following, initiate an action in the superior court in the county in which the property is located to reacquire the property or receive additional compensation.
   3. The condemnor shall provide notice to each former owner of the property prior to acquisition if the condemnor fails to put such property to a public use within five years. The condemnee shall have one year from the date notice is received to bring an application under this subsection.
4. When property is acquired from more than one owner for the same public use and reconveyance or additional compensation to a single owner is impracticable, any party to the original condemnation or each person with a legal claim in such condemnation may file an action in the superior court in the county in which the property is located for an equitable resolution.
5. This Code section shall not apply to condemnations subject to Code Section 22-3-162 or Title 32.

(Orig. Code 1863, § 2201; Code 1868, § 2196; Code 1873, § 2222; Code 1882, § 2222; Civil Code 1895, § 3052; Civil Code 1910, § 3624; Code 1933, § 36-101; Ga. L. 2006, p. 39, § 4/HB 1313; Ga. L. 2017, p. 754, § 1/HB 434.)

- Ga. L. 2006, p. 39, § 1/HB 1313, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25/HB 1313, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

- For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 157 (2006). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 201 (2017). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For comment on Botts v. Southeastern Pipeline Co., 190 Ga. 689, 10 S.E.2d 375 (1940); Harrell v. Southeastern Pipeline Co., 190 Ga. 709, 10 S.E.2d 387 (1940), see 3 Ga. B.J. 49 (1941); State Hwy. Dep't v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557 (1966), see 3 Ga. St. B. J. 483 (1967).

JUDICIAL DECISIONS

Taking property for public use is legislative, not judicial, function.

- 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).

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

- Since the power to take private property for a public use or benefit is in derogation of the right of the citizen, statutes under which it is claimed must be strictly construed, and it is generally held that the power is not conferred unless an intention to that effect appears in clear and express terms, or by necessary implication. Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 10 S.E.2d 375 (1940), commented on in 3 Ga. B.J. 49 (1941).

The exercise of the right of eminent domain is a legislative function, and the powers delegated by the General Assembly thereunder must be exercised in strict conformity with the statute. DOT v. Worley, 150 Ga. App. 768, 258 S.E.2d 595, aff'd and modified on other grounds, 244 Ga. 783, 263 S.E.2d 436 (1979).

- The power of eminent domain may never be used to acquire property to be used by private individuals solely for private use and private gain. City of Atlanta v. Atlanta Gas Light Co., 144 Ga. App. 157, 240 S.E.2d 730 (1977).

- In the absence of bad faith the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, both as to necessity and amount. City of Atlanta v. First Nat'l Bank, 154 Ga. App. 658, 269 S.E.2d 878 (1980).

- When property is condemned for exchange with another public utility, and the property will be used for a public purpose, this is called "substituted condemnation," and this is a valid exercise of the condemnor's power of eminent domain. City of Atlanta v. Atlanta Gas Light Co., 144 Ga. App. 157, 240 S.E.2d 730 (1977).

A taking for redevelopment is a taking for a public purpose. Nations v. Downtown Dev. Auth., 225 Ga. 324, 338 S.E.2d 240 (1985).

- After the Department of Transportation informed a corporation in the spring of 1981 that a building leased by the corporation would be condemned for highway purposes, but later all work on the proposed highway, including all condemnation actions in progress, was halted, and the corporation sought to recover from the department the corporation's loss of an advantageous leasehold interest, as well as expenses involved in moving, since the corporation had been advised that no move was required before September 1982, and that written notification would precede a required removal, the corporation's decision to move in August 1982 was by voluntary choice, and could not be attributed to an interference by the department with the corporation's exclusive rights of ownership, use and enjoyment. Hence, whether the corporation'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).

Cited in Felton v. State Hwy. Bd., 51 Ga. App. 930, 181 S.E. 506 (1935); Williamson v. Housing Auth., 186 Ga. 673, 199 S.E. 43 (1938); Housing Auth. v. Savannah Iron & Wire Works, Inc., 90 Ga. App. 150, 82 S.E.2d 244 (1954); Central of Ga. R.R. v. Georgia Pub. Serv. Comm'n, 257 Ga. 217, 356 S.E.2d 865 (1987).

OPINIONS OF THE ATTORNEY GENERAL

Legislature may authorize municipality's acquisition of land beyond its limits.

- Legislature has the power to authorize a municipal corporation to acquire lands beyond the municipal limits and for that purpose to exercise the power of eminent domain when the proposed taking of private property is strictly for public use. 1965-66 Op. Att'y Gen. No. 66-65.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 1 et seq., 44 et seq.

Eminent Domain: Proof of Lack of Reasonable Necessity for Taking of Property, 71 POF3d 97.

- 29A C.J.S., Eminent Domain, §§ 1 et seq., 27 et seq.

- Exercise of eminent domain for purpose of irrigating land of private owner, 9 A.L.R. 583; 27 A.L.R. 519.

Right to condemn property previously condemned or purchased for public use, but not actually so used, 12 A.L.R. 1502.

Exercise of eminent domain to control the use or improvement of property not taken, 23 A.L.R. 876.

Constitutionality of statute conferring power of eminent domain on private corporation or association for educational, religious, or recreational purpose, 50 A.L.R. 1530.

Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.

Public benefit or convenience as distinguished from use by the public as ground for the exercise of the power of eminent domain, 54 A.L.R. 7.

Right of public body to compensation where property held by it is taken for another public purpose, 56 A.L.R. 365.

Exercise of eminent domain to preserve places of historical interest, 59 A.L.R. 945.

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

Diversion of park property to other uses as taking or damaging neighboring property without compensation, 83 A.L.R. 1435.

State power of eminent domain as affected by interstate character of uses to which property taken is to be devoted, 90 A.L.R. 1032.

Obstruction or diversion of, or other interference with, flow of surface water as taking or damaging property within constitutional provision against taking or damaging without compensation, 128 A.L.R. 1195.

Retention, by building or other fixture, of its character as real property, for purposes of statute authorizing condemnation of real property, notwithstanding agreement treating it as personalty, 151 A.L.R. 1429.

Condemnation of public utility property for public utility purposes, 173 A.L.R. 1362.

Electric light or power line in street or highway as additional servitude, 58 A.L.R.2d 525.

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

Substitute condemnation: power to condemn property or interest therein to replace other property taken for public use, 20 A.L.R.3d 862.

Eminent domain: right to enter land for preliminary survey or examination, 29 A.L.R.3d 1104.

Eminent domain: validity of appropriation of property for anticipated future use, 80 A.L.R.3d 1071.

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.

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

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

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