Except in cases of extreme necessity and great urgency, the right of eminent domain cannot be exercised without first providing for just compensation to the owner for the interference with his exclusive rights.
(Orig. Code 1863, § 2204; Code 1868, § 2199; Code 1873, § 2225; Code 1882, § 2225; Civil Code 1895, § 3055; Civil Code 1910, § 3627; Code 1933, § 36-104.)
Cross references.- Private ways, Ga. Const. 1983, Art. I, Sec. III, Para. II. Specific powers of General Assembly, Ga. Const. 1983, Art. III, Sec. VI, Para. II.
Law reviews.- For comment on DeKalb County v. Trustees, Decatur Lodge No. 1602, 242 Ga. 707, 251 S.E.2d 243 (1978), see 31 Mercer L. Rev. 367 (1979).
JUDICIAL DECISIONS
Eminent domain statutes must be strictly construed.
- The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by law, under which it may be done, should be closely followed. Too much caution in this respect cannot be observed to prevent abuse and oppression. Thomas v. City of Cairo, 206 Ga. 336, 57 S.E.2d 192 (1950).
Private property cannot be taken for public uses, except under the forms and by due course of law. Thomas v. City of Cairo, 206 Ga. 336, 57 S.E.2d 192 (1950).
Owner entitled to compensation as of date of taking.
- When private property is condemned for public use the owner is entitled to receive just and adequate compensation as of the date of the taking and not as of the date of the announcement of the taking, and the value of the property should be fixed at the time of its taking. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800, 189 S.E.2d 114 (1972).
Compensation must be paid before property is taken.
- In eminent domain proceedings, the property owner must be paid just and adequate compensation before the owner's property is taken. Thomas v. City of Cairo, 206 Ga. 336, 57 S.E.2d 192 (1950).
Payment of just and adequate compensation to the owner must always precede the taking of property for public use. City of Atlanta v. Wright, 159 Ga. App. 809, 285 S.E.2d 250 (1981).
Taking includes interference with rights incident to property.
- A taking of property for which compensation must be first paid does not require an actual physical taking, but may consist in an interference with the rights of ownership, use and enjoyment, or any other right incident to property. Woodside v. City of Atlanta, 214 Ga. 75, 103 S.E.2d 108 (1958).
In a condemnation case, an arbitrator properly found that the condemnor who refused to assist the owner of the condemned land in relocating its plant located on the condemned land, was responsible for the owner's failure to relocate the plant. Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353, 617 S.E.2d 612 (2005).
Because the cost of relocating a plant located on the condemned land exceeded the plant's value, as awarded by an arbitrator, the plant's owner could not be charged with failing to mitigate its damages by not relocating. Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353, 617 S.E.2d 612 (2005).
Remote and speculative or possible damages are not allowed. McCrea v. Georgia Power Co., 46 Ga. App. 276, 167 S.E. 540 (1933).
Market value is not the only criterion for determining just and adequate compensation when property is taken or damaged for public purposes. State Hwy. Dep't v. Augusta Dist. of N. Ga. Conference of Methodist Church, 115 Ga. App. 162, 154 S.E.2d 29 (1967).
There are three recognized techniques for determining market value: replacement cost new less depreciation, income, and comparable sales. Housing Auth. v. Southern Ry., 245 Ga. 229, 264 S.E.2d 174 (1980).
Loss of future revenue is not a proper measure of damages in condemnation procedures, but the value of property to the owner for the particular purpose for which the owner designs to use the property can always be shown. Harrison v. Regents of Univ. Sys., 105 Ga. App. 817, 125 S.E.2d 793 (1962).
Attorneys' fees need not be included in measuring just compensation under the Georgia Constitution. 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).
"Unique" property.
- Since valuing property at its fair market value presupposes a willing buyer and a willing seller, properties are "unique" when fair market value will not afford just and adequate compensation when the properties are not of a type generally bought or sold in the open market. Housing Auth. v. Southern Ry., 245 Ga. 229, 264 S.E.2d 174 (1980).
Whether or not property is unique is a jury question. Dixie Hwy. Bottle Shop, Inc. v. Department of Transp., 150 Ga. App. 839, 258 S.E.2d 646 (1979); DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314, 265 S.E.2d 10 (1980).
Valuation of "unique" property.
- "Unique" property is measured by a variety of nonfair market methods of valuation, including the cost and income methods. Housing Auth. v. Southern Ry., 245 Ga. 229, 264 S.E.2d 174 (1980).
It is not incorrect to instruct jury on lost profits as a means of awarding just and adequate compensation because the income approach necessarily takes into account what future earnings would be were the property interest not extinguished. Housing Auth. v. Southern Ry., 245 Ga. 229, 264 S.E.2d 174 (1980).
Recovery of business losses.
- Business losses are recoverable as a separate item only if the property is "unique." DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314, 265 S.E.2d 10 (1980).
When a business belongs to the landowner, total destruction of the business at the location must be proven before business losses may be recovered as a separate element of compensation. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314, 265 S.E.2d 10 (1980).
When the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of the business is total or merely partial, provided only that the loss is not remote or speculative. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314, 265 S.E.2d 10 (1980).
In a condemnation case, the fact that the owner of the condemned land had ceased the operation of a rendering plant located on the land by the time of trial did not preclude the recovery of business loss damages. Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353, 617 S.E.2d 612 (2005).
Award of business loss damages was proper for the condemnation of land on which a rendering plant was located because the loss was not speculative: the plant was established and plants engaged in the rendering business were not generally bought and sold on the open market, making it unique. Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353, 617 S.E.2d 612 (2005).
Application of law existing on date of appeal to case already tried.
- Owners in condemnation cases have vested rights to just and adequate compensation which cannot be destroyed by applying the law existing as of the date of the appeal to a case that has already been tried. Dot v. Worley, 150 Ga. App. 768, 258 S.E.2d 436, aff'd and modified on other grounds, 244 Ga. 783, 263 S.E.2d 436 (1979).
Limitations on action for interference with right of access.
- The property owner whose right of access is damaged by public improvements to the streets either by obstructing or cutting off completely access or travel in a particular direction may maintain an action only when the interference is at or within the first intersecting block from the owner's property. Decatur County v. Settles, 107 Ga. App. 150, 129 S.E.2d 212 (1962).
The Department of Transportation is not required to condemn or pay for, as a separate and additional item of damage, the taking of a nonexistent property right, the "right of access" to a limited-access highway, except where an old highway is included therein. State Hwy. Dep't v. Kinsey, 131 Ga. App. 770, 206 S.E.2d 835 (1974).
Insufficient compliance with O.C.G.A. § 22-1-9. - In a condemnation action, the court vacated the trial court's order adopting the special master's return as to the property value because none of the city's offers prior to 2014 satisfied the dictates of O.C.G.A. § 22-1-9(3) and the city took several years to comply with § 22-1-9(3), which bore on the issue of whether the city acted in bad faith, which required further consideration by the trial court. Summerour v. City of Marietta, 338 Ga. App. 259, 788 S.E.2d 921 (2016), aff'd in part and rev'd in part, 302 Ga. 645, 807 S.E.2d 324 (2017).
Cessation of work on project after notifying property owner of possible condemnation.
- 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 Housing Auth. v. Savannah Iron & Wire Works, Inc., 90 Ga. App. 150, 82 S.E.2d 244 (1954); DOT v. Glenn, 243 Ga. 21, 252 S.E.2d 906 (1979); Simmons v. DOT, 225 Ga. App. 572, 484 S.E.2d 332 (1997).
OPINIONS OF THE ATTORNEY GENERAL
Owner's recovery not restricted to market value.
- The constitutional and statutory provisions as to just and adequate compensation do not necessarily restrict the owner's recovery to market value; the owner is entitled to the value of the property to the owner, not the property's value to the state. 1958-59 Op. Att'y Gen. p. 271.
RESEARCH REFERENCES
Am. Jur. 2d.
- 26 Am. Jur. 2d, Eminent Domain, § 112 et seq.
9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 90 et seq.
C.J.S.- 25 C.J.S., Damages, § 1 et seq. 29A C.J.S., Eminent Domain, § 66 et seq.
ALR.
- Right to and measure of compensation to owner of fee when telegraph or telephone line is erected along railroad right of way or highway, 19 A.L.R. 383.
Right of abutting owner to compensation for railroad in street under constitutional provision against damaging property for public use without compensation, 22 A.L.R. 145.
Limitation applicable to action for consequential damage as result of taking or damaging of property for public use, 30 A.L.R. 1190; 139 A.L.R. 1288.
Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98.
Right to compensation for improvements made under authority, or color thereof, by body having power of eminent domain, before exercise of that power, 34 A.L.R. 1082.
Damage to property from proximity of cemetery as "damage" within constitutional provision against taking or damaging property without compensation, 36 A.L.R. 527.
Changing location of railroad or street railway in street or highway as a taking or damaging for which compensation must be made, 46 A.L.R. 1446.
Provision for taking or retaining possession pending appeal in condemnation proceeding, 55 A.L.R. 201.
Right of abutting owner to compensation on widening of highway space for vehicle traffic, 55 A.L.R. 896.
Liability of railroad company to property owner for change of grade incident to construction of overhead or underground crossing, 57 A.L.R. 657.
Lack of diligence to contest a public use on ground that compensation has not been made for private property or rights as affecting right to relief, 58 A.L.R. 681.
Are different estates or interests in real property taken under eminent domain to be valued separately, or is entire property to be valued as a unit and the amount apportioned among separate interests, 69 A.L.R. 1263; 166 A.L.R. 1211.
Right of tenant to remove buildings or other fixtures as affecting tenant's right to compensation in respect to such improvements in condemnation proceeding, 75 A.L.R. 1495.
Power to condemn, or authorize the condemnation of, capital stock of a public utility, 81 A.L.R. 1071.
Measure and items of compensation or damages for flooding property under the right of eminent domain, 106 A.L.R. 955.
Compensation for property confiscated or requisitioned during war, 137 A.L.R. 1290; 147 A.L.R. 1297; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 150 A.L.R. 1417; 150 A.L.R. 1418; 151 A.L.R. 1453; 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.
Rights of mortgagee in award in eminent domain proceedings, 154 A.L.R. 1110.
Measure of compensation in eminent domain to be paid to state or municipality for taking of public highway or street, 160 A.L.R. 955.
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.
Elements and measure of compensation in eminent domain for temporary use and occupancy, 7 A.L.R.2d 1297.
Constitutional rights of owner as against destruction of building by public authorities, 14 A.L.R.2d 73.
Validity, construction, and effect of provisions in life or accident policy in relation to military service, 36 A.L.R.2d 1018.
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.
Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.
Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.
Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.
Counsel's use, in trial of condemnation proceeding, of chart, diagram or blackboard, not introduced in evidence, relating to damages or the value of the property condemned, 80 A.L.R.2d 1270.
Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings, 2 A.L.R.3d 1038.
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.
Admissibility of evidence of proposed or possible subdivision or platting of condemned land on issue of value in eminent domain proceedings, 26 A.L.R.3d 780.
Rights and liabilities of parties to executory contract for sale of land taken by eminent domain, 27 A.L.R.3d 572.
Award of, or pending proceedings for, compensation for property condemned, as precluding action for damages arising from prior trespasses upon it, 33 A.L.R.3d 1132.
Eminent domain: cost of substitute facilities as measure of compensation paid 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 and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.
Measure of damages for condemnation of cemetery lands, 42 A.L.R.3d 1314.
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.
Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.
Compensation for interest prepayment penalty in eminent domain proceeding, 84 A.L.R.3d 946.
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.
Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.
Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding, 97 A.L.R.3d 587.
Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.
Eminent domain: measure and elements of lessee's compensation for condemnor's taking or damaging of leasehold, 17 A.L.R.4th 337.
Sufficiency of condemnor's negotiations required as preliminary to taking in eminent domain, 21 A.L.R.4th 765.
Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.
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 owner, 26 A.L.R.4th 68.
Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.
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.
Elements and measure of compensation in eminent domain proceeding for temporary taking of property, 49 A.L.R.6th 205.
Admissibility of hospital records under Federal Business Records Act (28 USC sec. 1732(a)), 9 A.L.R. Fed. 457.