2020 Georgia Code
Title 22 - Eminent Domain
Chapter 2 - Condemnation Procedure Generally
Article 2 - Proceeding Before Special Master

- Succession by auditors to duties previously performed by masters in superior courts of state, § 9-7-1.

- For article, "Condemning Local Government Condemnation," see 39 Mercer L. Rev. 11 (1987).

JUDICIAL DECISIONS

Article does not violate state Constitution.

- Ga. L. 1957, p. 387, § 1 et seq., which provides procedures for the condemnation of private property for public use by the state and other political entities, does not as a whole violate the prohibition against taking land for public purposes without just compensation as the law provides an adequate method for determining the value of property sought to be taken and for just and adequate compensation to be first paid. O.K., Inc. v. State Hwy. Dep't, 213 Ga. 666, 100 S.E.2d 906 (1957).

Condemnee is not deprived of due process and equal protection of the laws. Collins v. Metropolitan Atlanta Rapid Transit Auth., 163 Ga. App. 168, 291 S.E.2d 742 (1982).

Ga. L. 1957, p. 387, § 1 et seq. meets due process requirements in that the law gives the condemnee notice as well as reasonable opportunity for preparation and for a hearing. Due process requirements are satisfied if one has a reasonable notice and opportunity to be heard, and to present one's claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it. Brown v. Georgia Power Co., 134 Ga. App. 784, 216 S.E.2d 613 (1975).

Due process requirements are satisfied by Ga. L. 1957, p. 387, § 1 et seq. in that the law gives the condemnee notice as well as an opportunity for a hearing. Sweat v. Georgia Power Co., 235 Ga. 281, 219 S.E.2d 384 (1975).

- The legislature, by enacting Ga. L. 1957, p. 387, §§ 5, 11, and 14 (see O.C.G.A. §§ 22-2-102,22-2-108, and22-2-112), has provided an adequate method for determining the just and adequate compensation of property sought to be condemned, and Ga. L. 1957, p. 387, § 12 (see O.C.G.A. § 22-2-110) of the act in no wise limits the master to an arbitrary finding. Kellett v. Fulton County, 215 Ga. 551, 111 S.E.2d 364 (1959).

Constitutional guarantee of trial by jury does not extend to eminent domain proceedings. Sweat v. Georgia Power Co., 235 Ga. 281, 219 S.E.2d 384 (1975).

Purpose of Ga. L. 1957, p. 387, § 1 et seq. is to provide for speedy ascertainment of just and adequate compensation under the supervision of the superior court, and in such a role the special master is simply an extension of the court, appointed by it as a semi-judicial assistant. West End Whses., Inc. v. Dunlap, 141 Ga. App. 333, 233 S.E.2d 284 (1977).

The purpose of Ga. L. 1957, p. 387, § 1 et seq. is to provide a simpler and more effective method of condemnation when there is a necessity for a quick determination or when, for several reasons, a judicial supervision is desirable. Fountain v. Marta, 147 Ga. App. 465, 249 S.E.2d 296 (1978).

Ga. L. 1957, p. 387, § 1 et seq. provides cumulative and summary method for condemnation of property. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).

The 1967 amendment to O.C.G.A. § 22-2-100 et seq. should be construed as evidencing legislative intent that special master proceeding be considered a "supplementary" and "cumulative" form of condemnation in all cases wherein condemnor otherwise possesses power of eminent domain. Mallory v. Upson County Bd. of Educ., 163 Ga. App. 377, 294 S.E.2d 599 (1982).

Law attempts to achieve more perfect conciliation between parties by providing for the use of experienced, competent attorneys as special masters. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974).

Special master's rulings may be excepted to by trial court and disposed of in like manner before any award, which is the end product of the proceeding, is offered to the court and a judgment of taking is entered up based on the award. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974).

Ga. L. 1957, p. 387, § 1 (see O.C.G.A. § 22-2-100 et seq.) is not controlled by Civil Practice Act, (see O.C.G.A. § 9-11-1 et seq.) but is a special statutory proceeding. Roberts v. Wise, 140 Ga. App. 1, 230 S.E.2d 320 (1976).

Special master procedure is in rem proceeding which contains no requirement of negotiation. Harwell v. Georgia Power Co., 154 Ga. App. 142, 267 S.E.2d 769, aff'd, 246 Ga. 203, 269 S.E.2d 464 (1980).

- In absence of express authority, the condemning procedure authorized by Ga. L. 1957, p. 387, § 1 et seq. is not available for use by condemnors who seek to take property previously dedicated to a public use. Georgia S. & Fla. Ry. v. City of Warner Robins, 107 Ga. App. 370, 130 S.E.2d 151 (1963).

Condemnor chooses its method of procedure, and it is bound by the provisions of law following its own election. The property owner is also bound, although the owner did not choose the method of procedure. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).

If the condemnor elects to use the Special Master Law, then it is bound by the provisions of law following its own election. Wrege v. Cobb County, 186 Ga. App. 512, 367 S.E.2d 817, cert. denied, 186 Ga. App. 919, 367 S.E.2d 817 (1988).

Condemnor has no rights except those expressly granted to it by statute, and those rights can be exercised only when every prerequisite to their exercise has been fully met. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).

Large discretion is vested in condemnor in selection of property to be condemned, and such selection should not be interfered with or controlled by the courts, unless made in bad faith, or capriciously or wantonly injurious, or in some respect beyond the privilege conferred by statute or its charter. Miles v. Brown, 223 Ga. 557, 156 S.E.2d 898 (1967).

- Petition for condemnation can be amended by condemnor to make a more specific description of right of way to be condemned. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).

- Superior court did not err in holding that condemnor county board of education was authorized to proceed under O.C.G.A. § 22-2-100 et seq. in exercising power of eminent domain. Mallory v. Upson County Bd. of Educ., 163 Ga. App. 377, 294 S.E.2d 599 (1982).

- Ga. L. 1957, p. 387, § 1 et seq. vests a broad discretion in the condemning authority as to the necessity for the taking and provides that other matters material to the rights of the condemnee generally will be determined under proper pleadings in the pending condemnation proceedings. Miles v. Brown, 223 Ga. 557, 156 S.E.2d 898 (1967).

Private company possessing power of eminent domain is authorized to employ condemnation procedure of Ga. L. 1957, p. 387, § 1 et seq. Nodvin v. Georgia Power Co., 125 Ga. App. 821, 189 S.E.2d 118 (1972).

- When the condemnor is not the state, or a part of the state or an agency of the state but a creature created by the state, the condemnor is not authorized to condemn property in its own name for public purposes. Scarlett v. Georgia Ports Auth., 223 Ga. 417, 156 S.E.2d 77 (1967).

- Under Ga. L. 1957, p. 387, § 1 et seq., the condemning body, after the required preliminary procedures, may take the property, use the property, and proceed to change the property to a degree that irrevocable harm could be done before the issue of incompatible use is determined. Georgia S. & Fla. Ry. v. City of Warner Robins, 107 Ga. App. 370, 130 S.E.2d 151 (1963).

- When wording is taken from a prior statute, or when Ga. L. 1957, p. 387, § 1 et seq. fails to be complete within itself, then reference to provisions for proceedings before assessors is permitted to fill in the void. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).

- The necessity or expediency of taking property for public use is a legislative question upon which the owner is not entitled to a hearing under U.S. Const., amend. 14 and Ga. Const. 1976, Art. I, Sec. I, Para. I (see Ga. Const. 1983, Art. I, Sec. I, Para I). Miles v. Brown, 223 Ga. 557, 156 S.E.2d 898 (1967).

- The owner of private property cannot, by petition for injunction, defeat a condemnation proceeding or litigate the issue that the property sought to be condemned is being condemned for private rather than public purposes; such issue must be litigated in the condemnation proceeding. Reeves v. City of Atlanta, 216 Ga. 592, 118 S.E.2d 378 (1961).

Owner of land cannot prevent condemnation because there is other property which might be suitable for purpose. Miles v. Brown, 223 Ga. 557, 156 S.E.2d 898 (1967).

- The burden of proof to show the value of the land taken and the consequential damages to the remaining property, if any, is on the condemnor. State Hwy. Dep't v. Smith, 111 Ga. App. 292, 141 S.E.2d 590 (1965).

- Evidence of the difference between the value of the whole property (that taken and that not taken) before a taking and after the taking is without probative value as to the actual value of the land taken and the consequential damage to that not taken. State Hwy. Dep't v. Mann, 110 Ga. App. 390, 138 S.E.2d 610 (1964).

- When legal objections are raised before and passed upon by the special master, to obtain review of these objections exceptions must be taken to the master's findings prior to the superior court's entry of an order and judgment condemning the property; additionally, if either party is dissatisfied with the master's award as regards value, they may, within ten days from the time the award is filed, enter in writing an appeal from the award to the superior court and it shall be the duty of the judge to cause an issue to be made and tried by a jury. Parlato v. City of Atlanta, 151 Ga. App. 235, 259 S.E.2d 217 (1979).

Ga. L. 1957, p. 387, § 1 et seq. limits appeal to question of value only, and provides that all other issues including the right to condemn, the interest condemned, and everything else preliminary to the actual vesting of title should be decided at the first hearing. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961); Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974).

In condemnation cases, the sole question for the consideration of the jury, upon an appeal from an award of the assessors or from an award of a special master, is the amount of compensation to be paid to the condemnee for the property taken under the condemnation proceeding and the amount of damages to the remaining property of the condemnee, if any. State Hwy. Dep't v. Smith, 111 Ga. App. 292, 141 S.E.2d 590 (1965).

Appellate review of question of what property interest is taken in a condemnation under the special master procedure is allowed when properly raised and preserved. Harwell v. Georgia Power Co., 154 Ga. App. 142, 267 S.E.2d 769, aff'd, 246 Ga. 203, 269 S.E.2d 464 (1980).

Action for recovery of damages resulting from condemnor's negligence is not proper in condemnation proceedings. Georgia Power Co. v. Jones, 122 Ga. App. 614, 178 S.E.2d 265 (1970).

There is no law permitting recovery of damages to personalty as such on appeal of a finding by the special master fixing value of real property alone. State Hwy. Dep't v. Mann, 110 Ga. App. 390, 138 S.E.2d 610 (1964).

Cited in Anthony v. State Hwy. Dep't, 215 Ga. 853, 113 S.E.2d 768 (1960); Fulton County v. Aronson, 216 Ga. 497, 117 S.E.2d 166 (1960); State Hwy. Dep't v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964); State Hwy. Dep't v. Respess, 111 Ga. App. 421, 142 S.E.2d 73 (1965); Avary v. City of Atlanta, 221 Ga. 76, 143 S.E.2d 183 (1965); Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966); Donehoo v. Fulton County, 116 Ga. App. 368, 157 S.E.2d 323 (1967); City of Atlanta v. Airways Parking Co., 225 Ga. 173, 167 S.E.2d 145 (1969); State Hwy. Dep't v. Howard, 119 Ga. App. 298, 167 S.E.2d 177 (1969); Phillips v. Georgia Power Co., 225 Ga. 289, 168 S.E.2d 150 (1969); Jones v. Georgia Power Co., 225 Ga. 510, 169 S.E.2d 810 (1969); DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695, 182 S.E.2d 160 (1971); White v. Georgia Power Co., 237 Ga. 341, 227 S.E.2d 385 (1976); City of Atlanta v. First Nat'l Bank, 154 Ga. App. 658, 269 S.E.2d 878 (1980); White v. Georgia Power Co., 247 Ga. 256, 274 S.E.2d 565 (1981); Craven v. Georgia Power Co., 248 Ga. 79, 281 S.E.2d 568 (1981); Dougherty County v. Burt, 168 Ga. App. 166, 308 S.E.2d 395 (1983); White v. Ringgold Tel. Co., 334 Ga. App. 325, 779 S.E.2d 378 (2015).

It is responsibility of special master to establish value of property condemned, and nothing more; one's duty is to assess the value of the property taken or damaged, and also to assess the consequential damages and benefits to the property not taken. 1969 Op. Att'y Gen. No. 69-494.

Date of taking is date of special master's or assessor's award. 1970 Op. Att'y Gen. No. 70-116.

- When condemnation is necessary, the appraiser should be instructed to update the appraisal to the date of the hearing before the special master; this appraisal should contemplate that the amount of the award will be paid into court by condemnor within ten days of such hearing by the special master, and this is the amount that the appraiser should be prepared to testify to if and when there is an appeal of the matter to a jury in the superior court by either party thereto. 1970 Op. Att'y Gen. No. 70-116.

Payment of city or county taxes is not proper element of damages in condemnation case. 1969 Op. Att'y Gen. No. 69-494.

- The payment of property taxes is a responsibility of the landowner only so long as one, in fact, owns the property. The property owner or condemnee would be responsible for payment of taxes up to the date of taking; after that time, the responsibility for the payment of these taxes would lie upon the condemning body, if in fact that body is an entity which would have the responsibility for payment of these taxes. 1969 Op. Att'y Gen. No. 69-494.

RESEARCH REFERENCES

C.J.S.

- 29A C.J.S., Eminent Domain, § 389 et seq.

- Limitation applicable to action or proceeding by owner for compensation where property is taken in exercise of eminent domain without antecedent condemnation proceeding, 123 A.L.R. 676.

Condemnor's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

Right to open and close argument in trial of condemnation proceedings, 73 A.L.R.2d 613.

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.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific cover, 26 A.L.R.4th 68.