Before the vesting of title in the condemnor and upon motion of the condemnee, or within ten days of the entry of the special master's award by entry of exception to the case, the court shall determine whether the exercise of the power of eminent domain is for a public use and whether the condemning authority has the legal authority to exercise the power of eminent domain and may stay other proceedings of the condemnation pending the decision of the court. The condemning authority shall bear the burden of proof by the evidence presented that the condemnation is for a public use as defined in Code Section 22-1-1. Nothing in this Code section shall be construed to require the condemnee to seek or obtain a special master's award prior to a hearing or decision by the court under this Code section.
(Code 1981, §22-1-11, enacted by Ga. L. 2006, p. 39, § 5/HB 1313.)
Editor's notes.- 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 apply to those condemnation proceedings filed on or after February 9, 2006, where title has not vested in the condemning authority unless constitutionally prohibited.
Law reviews.- For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).
JUDICIAL DECISIONS
Dismissal of action as nonjusticiable upheld.
- Because the city had yet to file a condemnation action against a landowner, the landowner's suit seeking a public use determination under O.C.G.A. § 22-1-11 was properly dismissed, as it failed to present a justiciable controversy, and the city's mere inchoate intention to do so, if at all, did not give rise to a justiciable cause of action; moreover, if the appeals court construed § 22-1-11 to be applicable before the initiation of a condemnation action, the court would render meaningless the phrase "before the vesting of title in the condemnor," because that clarification would be redundant. Fox v. City of Cumming, 289 Ga. App. 803, 658 S.E.2d 408 (2008).
Property owner's interpretation was not lacking in justification.
- Property owner's interpretation of O.C.G.A. § 22-1-11 was not so devoid of a justiciable issue or so lacking in substantial justification that it could not be reasonably believed that a court would accept that interpretation, such that an award of attorney fees against the owner pursuant to O.C.G.A. § 9-15-14(a) and (b) could not stand. Fox v. City of Cumming, 298 Ga. App. 134, 679 S.E.2d 365 (2009).
Cited in City of Marietta v. Summerour, 302 Ga. 645, 807 S.E.2d 324 (2017).
RESEARCH REFERENCES
Am. Jur. 2d.
- 26 Am. Jur. 2d, Eminent Domain, §§ 17 et seq., 42 et seq.
C.J.S.- 29A C.J.S., Eminent Domain, § 22 et seq.