2020 Georgia Code
Title 32 - Highways, Bridges, and Ferries
Chapter 3 - Acquisition of Property for Transportation Purposes
Article 1 - General Provisions
§ 32-3-1. Authority to Acquire Property for Present or Future Public Road or Other Transportation Purposes

1. Any property may be acquired in fee simple or in any lesser interest, including scenic easements, airspace, and rights of access, by a state agency or a county or municipality through gift, devise, exchange, purchase, prescription, dedication, eminent domain, or any other manner provided by law for present or future public road or other transportation purposes.
2. Public road purposes shall include rights of way; detours; bridges; bridge approaches; ferries; ferry landings; overpasses; underpasses; viaducts; tunnels; fringe parking facilities; borrow pits; offices; shops; depots; storage yards; buildings and other necessary physical facilities of all types; roadside parks and recreational areas; the growth of trees and shrubbery along rights of way; scenic easements; construction for drainage, maintenance, safety, or esthetic purposes; the elimination of encroachments, private or public crossings, or intersections; the establishment of limited-access public roads; the relocation of utilities; and any and all other purposes which may be reasonably related to the development, growth, or enhancement of the public roads of Georgia.
3. Property or interests shall not be acquired for "future public road purposes," as that term is used in this Code section, unless:
   1. Construction will be commenced on the property to be acquired within a period of not less than two years nor more than ten years following the end of the fiscal year in which the secretary of transportation of the United States approves an advance of all the necessary funds to the department for the acquisition of rights of way for such construction under authority of Title 23, Section 108, United States Code, as amended; or
   2. The intended acquisition is part of a specific plan of highway development, and the acquisition will assist in accomplishing one or more of the following:
      1. A substantial monetary savings;
      2. The enhancement of the integration of highways with public or private urban redevelopment; or
      3. The forestalling of the physical or functional obsolescence of highways.
4. In the process of acquiring property or interests for any public road purpose, an entire lot, block, or tract of land may be acquired if by so doing the interest of the public will be best served.

(Code 1933, § 95A-601, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1981, p. 878, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1985, p. 149, § 32; Ga. L. 2020, p. 371, § 4/HB 1098.)

The 2020 amendment, effective July 29, 2020, substituted "or" for "and" at the end of paragraph (c)(1).

- Municipal street improvements, T. 36, C. 39.

Easements generally, T. 44, C. 9.

- For article surveying real property law in 1984-1985, see 37 Mercer L. Rev. 343 (1985). For comment on Southern Ry. v. State Hwy. Dep't., 219 Ga. 435, 134 S.E.2d 12 (1963), see 1 Ga. St. B. J. 242 (1964).

ANALYSIS

• General Consideration
• Authority to Condemn
• Legislative Intent
• Trial

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 640; former Code 1933, §§ 36-1001, 95-1701, 95-1710, 95-1715, 95-1721, 95-1724, and Chs. 23-6, 95-2, and 95-17; former Ga. L. 1955, p. 559, and former Ga. L. 1961, p. 517, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

- Requirements of the Condemnation Act override all provisions of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, in conflict with the Condemnation Act's special purposes. DOT v. Defoor, 173 Ga. App. 218, 325 S.E.2d 863 (1984).

- Property owner's motion to dismiss for improper service of process was properly denied in a city's in rem forfeiture action because the service requirements of the Civil Procedure Act, O.C.G.A. § 9-11-4(a), did not apply and a property owner was informed of the owner's appellate rights as required by O.C.G.A. § 32-3-1 et seq., Acquisition of Property for Transportation Purposes. Whigham v. City of Atlanta, 262 Ga. App. 742, 586 S.E.2d 412 (2003).

- People, in adopting the Constitution, and the General Assembly, in enacting O.C.G.A. § 32-3-1, did not intend to allow a public body to condemn the right to damage property without also taking a property interest. Metropolitan Atlanta Rapid Transit Auth. v. Trussell, 247 Ga. 148, 273 S.E.2d 859 (1981).

- Because there is no statutory provision that all land for a project must be acquired simultaneously, the Department of Transportation did not abuse the department's condemnatory powers by taking appellant's property to construct an allegedly private roadway without acquiring the adjacent property necessary to complete the project. Texaco, Inc. v. DOT, 165 Ga. App. 338, 301 S.E.2d 59 (1983).

Property upon which construction will commence within two years is not acquired for "future" public road purposes and is not subject to the restrictions of O.C.G.A. § 32-3-1 upon acquisitions for "future" public road purposes. Citizens Coalition for Planned Growth, Inc. v. Glynn County, 249 Ga. 664, 292 S.E.2d 847 (1982).

For purposes of O.C.G.A. § 32-3-1, "present road purposes" refers to construction to begin in less than two years, while "future public road purposes" refers to construction that will commence within a period of not less than two nor more than ten years. Fulton County v. Davidson, 253 Ga. 734, 325 S.E.2d 135 (1985).

- Where the owners of a tract of land subdivide the tract into lots, record a map or plat showing such lots, with designated streets and a public park, and sell lots with reference to such map or plat, the owners are presumed to have irrevocably dedicated such streets and park for the use of all of the lot owners in the subdivision. The owners of lots in the subdivision have an easement in these public areas whether or not there has ever been an acceptance of the dedication by public authorities or the public generally. Northpark Assocs. No. 2 v. Homard Dev. Co., 262 Ga. 138, 414 S.E.2d 214 (1992).

- There is a presumption that the dedication of roads to a county, whether express or implied, transfers only an easement. Northpark Assocs. No. 2 v. Homard Dev. Co., 262 Ga. 138, 414 S.E.2d 214 (1992).

Governing authority can acquire fee-simple title to a county road only through condemnation or an express grant in a deed or other instrument. When a road is established by dedication and there is no express grant of fee-simple title, an easement results. Northpark Assocs. No. 2 v. Homard Dev. Co., 262 Ga. 138, 414 S.E.2d 214 (1992).

An easement was a compensable property interest in a condemnation action. Lee v. City of Atlanta, 219 Ga. App. 264, 464 S.E.2d 879 (1995).

- 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 therefore, 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).

- Trial court correctly granted the Department of Transportation's motion for summary judgment as to restaurant owner's claim sounding in inverse condemnation since DOT was not even permitted to acquire property interests for future road building until the federal agency had approved in advance all the requisite funding. Thompson v. DOT, 209 Ga. App. 353, 433 S.E.2d 623 (1993).

- Department of Transportation was required to compensate adjoining landowner in action in which the department sought to condemn a strip of land in order to widen a highway for interference with the landowner's access to a public road but not for the revocation of a license allowing the landowner to maintain a driveway over an existing right of way. Harper Invs., Inc. v. DOT, 251 Ga. App. 521, 554 S.E.2d 619 (2001).

- After the Department of Transportation initiated condemnation proceedings against a property owner, the owner was not permitted to file a counterclaim to recover damages for unauthorized use of the remainder because the subject of the counterclaim was outside the bounds of this type of condemnation. DOT v. Fina Oil & Chem. Co., 194 Ga. App. 185, 390 S.E.2d 99 (1990).

- Trial court did not manifestly abuse the court's discretion by striking certain testimony of the condemnee's expert witness regarding valuation on the ground that the testimony was without sufficient foundation since the testimony was based on an assumption of the value as if the subject property had already been subdivided, which it had not; in making the court's ruling, the trial court properly discerned that, even though a different use of the property was shown to have been reasonably probable, a jury cannot evaluate the property as though the new use were an accomplished fact. Woodland Partners Ltd. P'ship v. DOT, 286 Ga. App. 546, 650 S.E.2d 277 (2007), cert. denied, No. S07C1767, 2007 Ga. LEXIS 698 (Ga. 2007).

Cited in DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985); DOT v. Samuels, 185 Ga. App. 871, 366 S.E.2d 181 (1988); DOT v. Foster, 262 Ga. App. 524, 586 S.E.2d 64 (2003); Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 633 S.E.2d 623 (2006).

Authority to Condemn

Condemnation not required when no prior right of access.

- Condemnor creating a limited access highway does not have to condemn a purported "right of access" where none has previously existed. DOT v. Hardin, 231 Ga. 359, 201 S.E.2d 441 (1973) (decided under former Ga. L. 1955, p. 559).

- State Highway Department (now Department of Transportation) is authorized to take property for the relocation of a gas company's interstate gas line since it was in the interest of safety and prevented inconvenience to the public using the gas line and since the acquisition was in furtherance of and reasonably for a public state highway use. Benton v. State Hwy. Dep't, 111 Ga. App. 861, 143 S.E.2d 396 (1965) (decided under former Code 1933, §§ 36-1301, 95-1701, 95-1715, 95-1724).

- City was not attempting to acquire a greater interest in the property than that authorized by law by seeking to acquire the land in fee simple. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

All interests may be condemned, whether acquired by easement or by fee simple title to the property. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

- Under the facts of this case, assertions that the condemnation of a permanent construction easement was an abuse and misuse of the Department of Transportation's (DOT's) powers of condemnation were without merit. Skipper v. DOT, 197 Ga. App. 634, 399 S.E.2d 538 (1990).

- Trial court properly denied a condemnee's petition to set aside a declaration of taking filed by a county under O.C.G.A. § 32-3-1 because the road at issue was open for use by the general public despite only a few private citizens most likely using the road; but, so long as the general public was not excluded, the power of eminent domain could be exercised. Emery v. Chattooga County, 325 Ga. App. 587, 753 S.E.2d 149 (2014).

Legislative Intent

Section strictly construed.

- In statutory proceedings, where persons may be deprived of property, this section must be strictly construed. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559.

- Under former Code 1933, § 95-1704a, it was the legislative intent that, when a limited access highway was to be constructed by the joint action of several governmental agencies, the rights of way for the highway could be acquired, by purchase, condemnation, or otherwise, by any of the governmental authorities of this state cooperating in the project. Martin v. Fulton County, 213 Ga. 761, 101 S.E.2d 716 (1958) (decided under former Ga. L. 1955, p. 559).

Trial

1. Preliminary Procedure

- If 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) (decided under former Ga. L. 1955, p. 559).

- Citations of authority that a suitor cannot join in one action in personam a number of persons and causes of action have no application to a condemnation proceeding in rem against described lands. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

- Condemnor can, in one proceeding, condemn a right of way over several tracts of land owned by different persons. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

- 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. I, in connection with the county's recreational development of the county's adjoining property, because the landowners failed to avail themselves of Georgia's inverse condemnation procedure, the Fifth Amendment takings claim was premature, and the county's motion for partial judgment on the pleadings was granted. Carney v. Gordon County, F. Supp. 2d (N.D. Ga. Sept. 12, 2006).

Condemnor cannot just abandon condemnation proceedings. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

- In the absence of proof that the city is asserting a right to abandon the project, or that the condemnation proceedings were not in good faith, the condemnation of lands for highways will not be enjoined on the theory that the city is authorized by the city's charter to disapprove an award for the value of the land. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

- It is the duty of persons claiming an interest in property sought to be condemned to establish the amount and character of the interest claimed. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

- In an action for damages to private property instituted under Ga. Const. 1976, Art. I, Sec. III, Para. I (see Ga. L. Const. 1983, Art. III, Sec. VI, Para. II) 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) (decided under former Code 1933, § 95-1710).

Trial court erred in denying an agency's motion for a directed verdict pursuant to O.C.G.A. § 9-11-50 in a condemnation proceeding pursuant to O.C.G.A. § 32-3-1 et seq.; the property owner's appraiser failed to provide adequate evidence that the owner suffered consequential damages based on damage to a fence. DOT v. Morris, 263 Ga. App. 606, 588 S.E.2d 773 (2003).

- In order to recover from a county for a taking, the plaintiff must show that the taking was done for a public purpose of the county; however, nothing appearing to the contrary, the allegation that the county took the property as part of a right of way for a road and street within the municipality and while acting in the conduct of the county's business sufficiently alleged the right of the county to condemn the land in question. McGhee v. Floyd County, 95 Ga. App. 221, 97 S.E.2d 529 (1957) (decided under former Code 1933, Chs. 23-6, 95-2).

- It is not necessary to show that the proposed alteration in the road is a public necessity; it is sufficient to show that it is of public utility. Barnard v. Durrence, 22 Ga. App. 8, 95 S.E. 372 (1918) (decided under former Code 1910, § 640).

3. Verdict and Appeal

Proper to exclude evidence of price paid for nearby land.

- It was not error to exclude from evidence a deed offered by the condemnee to show the price the condemnor paid for land located in alleged close proximity to that of the condemnee. Garden Parks v. Fulton County, 88 Ga. App. 97, 76 S.E.2d 31 (1953) (decided under former Code 1933, § 36-1001).

- When the condemnee introduced evidence to show that, because of the condemnation, the condemnee would be required to expend certain amounts on fences, screening hedges, and grading, and thus would be consequentially damaged, and there was no evidence as to any consequential benefits resulting from the improvement, the evidence did not authorize a charge on consequential benefits. Garden Parks v. Fulton County, 88 Ga. App. 97, 76 S.E.2d 31 (1953) (decided under former Code 1933, § 36-1001).

- When the state has specifically condemned access rights to a proposed highway, and when the highway will result in a loss of access to part of the condemnee's land, a charge which designates the condemnation of access rights as an element of compensation for the taking and the loss of access as an element of consequential damages, does not authorize a double award for the same thing. State Hwy. Dep't v. Price, 123 Ga. App. 655, 182 S.E.2d 175 (1971) (decided under former Ga. L. 1961, p. 517).

- In condemnation proceedings, the only issue before the assessors or a jury on appeal is the amount of compensation to be paid, and neither the assessors nor a jury can determine whether the condemnor is proceeding legally; the remedy of the landowners is to apply to a court of equity to enjoin the illegal proceedings. Garden Parks v. Fulton County, 88 Ga. App. 97, 76 S.E.2d 31 (1953) (decided under former Ga. L. 1961, p. 517).

- Affirmative action seeking to set aside judgment in favor of condemnor, and payment of all expenses and damages accrued to the condemnee, are essential to the vacating and setting aside of a judgment for the value of property condemned. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

- Since previous donation by condemnee had no relevance to the determination of the amount of just and adequate compensation for the property taken, references by condemnee's president to that previous donation as having been "forced" and "coerced" implied that condemnor had acted in bad faith; thus, the testimony by condemnee's president was both irrelevant and prejudicial. DOT v. Ultima-Trimble, Ltd., 204 Ga. App. 309, 418 S.E.2d 820 (1992).

- Jury was authorized to determine that evidence of comparable sales in the area of a landowner's land, even though higher than the landowner's expert's opinion of the market value of the acreage, reasonably established the value of the land, and it could fix the market value of the land higher or lower than that amount asserted by an expert, provided that the jury's verdict was not so disparate as to justify an inference of gross mistake or undue bias; thus, when the evidence supported the jury's award, there was no inference that it was the result of gross mistake or undue bias. DOT v. Brannan, 278 Ga. App. 717, 629 S.E.2d 481 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 95-2904 and 95-2907, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

- Department of Transportation may expend federal and state funds on transportation enhancement activities as defined in 23 U.S.C. § 101(a) in those instances where the Code of Public Transportation gives the department the authority to expend such funds, but the Department of Transportation has no authority to expend federal or state money on historic preservation, rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals) when such buildings, structures, or facilities are not being acquired for transportation purposes. 1993 Op. Att'y Gen. No. 93-3 (decided prior to 1993 amendment of § 32-1-3).

- Department of Transportation is responsible for acquiring the proper permission from a property owner in the form of a license to erect a retaining wall upon a slope easement; after permission is acquired, a wall may be erected and the original license is converted into an easement by operation of law; permission for the erection of retaining walls should be in writing so that a court need not make a factual determination as to whether permission was granted. 1971 Op. Att'y Gen. No. 71-165 (decided under former Code 1933, §§ 95-2904, 95-2907).

RESEARCH REFERENCES

ALR.

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

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.