If a person who is authorized to exercise the power of eminent domain cannot by contract procure the property or the easement, right of way, waterway, franchise, or other interest sought to be condemned, the person may take or damage the property or interest upon paying or tendering to the owner thereof just and adequate compensation.
(Ga. L. 1894, p. 95, § 2; Civil Code 1895, § 4658; Civil Code 1910, § 5207; Code 1933, § 36-302.)
Law reviews.- For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016).
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).
Appropriation of land without condemnation proceedings renders one a trespasser. Postal Telegraph-Cable Co. v. Kuhnen, 127 Ga. 20, 55 S.E. 967 (1906).
Term "right of way" was limited by former Civil Code 1910, § 5233 (see O.C.G.A. § 22-2-85) and did not imply the grant of the fee, so as to prevent the county from constructing a highway thereon. Atlanta B. & Atl. Ry. v. County of Coffee, 152 Ga. 432, 110 S.E. 214 (1921).
What direct and consequential damages are recoverable.
- Damages, both direct and consequential, which are recoverable are those arising from construction from some visible and physical inference with a specific piece of property, or with some specific right or rise connected therewith and capable of exact description. Austin v. Augusta Term. Ry., 108 Ga. 671, 34 S.E. 852, 47 L.R.A. 755 (1899).
Measure of damage is value of land taken and consequential damage, if any, to the remainder of the land. State Hwy. Dep't v. Weldon, 107 Ga. App. 98, 129 S.E.2d 396 (1962).
Condemnor has burden of proving what is just and adequate compensation for the property taken. Georgia Power Co. v. Smith, 94 Ga. App. 166, 94 S.E.2d 48 (1956).
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).
Burden to show consequential damage.
- The condemnor has the burden of proving whether there has been consequential damage to the remaining property and, if so, how much. Georgia Power Co. v. Smith, 94 Ga. App. 166, 94 S.E.2d 48 (1956).
Consequential damages include interference with the right of ingress and egress resulting from construction of public works. Mallory v. Morgan County, 131 Ga. 271, 62 S.E. 179 (1908).
Consequential damages to remaining property to be determined in separate suit.
- The damages to the remainder of the property caused by negligence or trespass in the construction process may not be considered in a condemnation proceeding but must be determined in a separate lawsuit. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979).
Market value is true measure of compensation.
- When property is taken under power of eminent domain for a public use, the property's market value for all purposes for which the property is available is the true measure of the owner's compensation. Georgia Power Co. v. Smith, 94 Ga. App. 166, 94 S.E.2d 48 (1956).
Sales of similar property as evidence of value.
- On a question in regard to the value of land sought to be condemned, it is competent to introduce evidence of sales of property similar to that in question, made at or near the time of the taking. The exact limit either of similarity or difference or of nearness or remoteness in point of time is difficult, if not impossible, to prescribe by any arbitrary rule, but must to a large extent depend on the location and the character of the property and the circumstances of the case; it is to be considered with reference to throwing light on the issue, and not as a mere method of raising a legal puzzle. West v. Fulton County, 95 Ga. App. 320, 97 S.E.2d 785 (1957).
Present and prospective value of condemned land as bridge site may be considered in determining damages. Mitchell County v. Hudspeth, 151 Ga. 767, 108 S.E. 305 (1921).
Correct measure of damage to one holding leasehold interest in land for over five years is the diminution in the market value of the premises for rent for the remainder of the term of the lease, that is, from the time of the damage till the end of the lease. Jones v. Richmond County, 61 Ga. App. 857, 7 S.E.2d 754 (1940).
Failure to secure property by contract is prerequisite to condemnation.
- Failure to secure the property by contract, by reason of the inability of the parties to agree upon the compensation to be paid therefor, is an essential prerequisite to the condemnation of private property for public uses. City of Elberton v. Hobbs, 121 Ga. 750, 49 S.E. 780 (1905).
Negotiations by a county authority, procuring right of way for roads in the name of the Department of Transportation (formerly State Highway Department) in an effort to agree with the owner of the property to be taken are not only authorized, but are required. Miller v. State Hwy. Dep't, 200 Ga. 485, 37 S.E.2d 365 (1946).
Former Code 1933, §§ 36-302 and 36-303 (see O.C.G.A. §§ 22-1-6 and22-1-7) required negotiation between the condemnor and condemnee and a failure to agree before condemnation proceedings could be instituted. Cable v. State Hwy. Bd., 208 Ga. 593, 68 S.E.2d 564 (1952).
Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling the owners' exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that the condemnor could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6. White v. Ringgold Tel. Co., 334 Ga. App. 325, 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).
Condemnor must show that proper effort was made to procure land by contract from the owner prior to institution of the condemnation proceedings. St. Clair v. State Hwy. Bd., 45 Ga. App. 488, 165 S.E. 297 (1932).
Failure to contract may be raised as objection on appeal.
- An objection by a landowner filed on appeal from an award by assessors that there was no effort to contract with the landowner will be heard. Atlanta Terra Cotta Co. v. Georgia Ry. & Elec. Co., 132 Ga. 537, 64 S.E. 563 (1909).
Tender and refusal by owner of the fair value of property is sufficient negotiation. Bridwell v. Gate City Term. Co., 127 Ga. 520, 56 S.E. 624, 10 L.R.A. (n.s.) 909 (1907).
Letter addressed to an executor personally, and not in the executor's representative capacity will not authorize a city to condemn the property. City of Atlanta v. Austell, 146 Ga. 456, 91 S.E. 478 (1917).
Railroads may contract for property necessary to their operation. Atlanta B. & Atl. Ry. v. County of Coffee, 152 Ga. 432, 110 S.E. 214 (1921).
If landowner permits, without legal objection, public utility to appropriate the owner's land to its necessary corporate use until such becomes a necessary and constituent part of its service to the public, the landowner, not for the protection so much of the company but for the benefit of the public, will be estopped from recovering the land in ejectment or from enjoining its use for the service, but will, if the owner moves in time, be remitted to an appropriate action for damages. Georgia Power Co. v. Kelly, 182 Ga. 33, 184 S.E. 861 (1936).
Ordinance allowing city to refuse property and payment held invalid.
- City ordinance which provides for the condemnation of property, with the proviso that the city might refuse to accept the property or to pay the award of the assessors if the amount, manner of payment, and terms thereof were not satisfactory to the city, is invalid and the city would be enjoined from proceeding thereunder. Thomas v. City of Cairo, 206 Ga. 336, 57 S.E.2d 192 (1950).
Cited in Western Union Tel. Co. v. Western & A.R.R., 142 Ga. 532, 83 S.E. 135 (1914); Hoch v. Candler, 190 Ga. 390, 9 S.E.2d 622 (1940); United States v. A Certain Tract or Parcel of Land, 44 F. Supp. 712 (S.D. Ga. 1942); State Hwy. Dep't v. Whitehurst, 106 Ga. App. 532, 127 S.E.2d 501 (1962); State Hwy. Dep't v. Hilliard, 112 Ga. App. 498, 145 S.E.2d 824 (1965); Multitex Corp. of Am. v. Dickinson, 683 F.2d 1325 (11th Cir. 1982).
OPINIONS OF THE ATTORNEY GENERAL
Damages measured by fair market value of property.
- Ordinarily, when an entire parcel of property is taken, or an entire leasehold interest is taken, the measure of the damages is the "market value" of the land or leasehold interest as the case might be; market value has been defined as the price which may be paid by one wishing but not required to buy, to one wishing but not required to sell. 1958-59 Op. Att'y Gen. p. 271.
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.
Fair and reasonable value of property as measure of damages.- The measure of damages for property taken by the right of eminent domain, being compensatory in its nature, is the pecuniary loss sustained by the owner, taking into consideration all relevant factors; this loss may be represented by the fair and reasonable value of the property taken if the market value would not coincide with the actual value thereof. 1958-59 Op. Att'y Gen. p. 271.
Costs of removing personal or business property from real estate.- The cost of moving personal property from real estate which is taken for public purposes cannot be considered as an element of damage, as such; however, the cost of removal of either fixtures, buildings, or personalty, especially when used for business purposes, may be considered as one of the factors entering into a determination of the value of the real estate to the condemnee from whom it is taken. 1958-59 Op. Att'y Gen. p. 271.
Reimbursement of utility companies relocated due to interstate highway construction.- Utility companies whose facilities must be relocated or reconstructed by reason of the construction of any segment of the Interstate Highway System must be reimbursed therefor. 1958-59 Op. Att'y Gen. p. 184.
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.- 29A C.J.S., Eminent Domain, §§ 57 et seq., 66 et seq.
ALR.
- Expense of building and maintaining fences as element in the determination of damages in eminent domain, 10 A.L.R. 451.
Compensation in second eminent domain proceeding, 18 A.L.R. 569.
Right under constitutional provision against taking or damaging, to recover in other than an eminent domain proceeding, for consequential damages to property no part of which is taken, 20 A.L.R. 516.
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.
Damages in eminent domain as affected by actual or potential value of riparian rights in connection with other property, 58 A.L.R. 796.
Measure of damages or compensation where property is taken to widen street, 64 A.L.R. 1513.
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.
Conveyance as passing right to proceeds of condemnation proceedings pending at time of conveyance, 82 A.L.R. 1063.
Measure and items of compensation or damages for flooding property under the right of eminent domain, 106 A.L.R. 955.
Right of owner or occupant of property to damages, and measure and elements thereof, because of temporary closing or obstruction during repairs or reconstruction of street or highway, under statutes in the regard, 120 A.L.R. 896.
Elements and measure of compensation for power lines or other wire lines over private property, 124 A.L.R. 407.
Distinction between income or profits from business on land and income or profits from use of land, as affecting admissibility of evidence in that regard on question of damages in eminent domain, 134 A.L.R. 1125.
Rights in respect of proceeds of an award in eminent domain proceedings made after mortgage foreclosure sale, 170 A.L.R. 272.
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.
Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property, 6 A.L.R.2d 1197.
Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.
Elements and measure of compensation in eminent domain for temporary use and occupancy, 7 A.L.R.2d 1297.
Eminent domain: elements and measure of compensation for oil or gas pipeline through private property, 38 A.L.R.2d 788.
Abutting owner's right to damages or other relief for loss of access because of limited-access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.
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.
Liability of public utility to abutting owner for destruction or injury of trees in or near highway or street, 64 A.L.R.2d 866.
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.
Rights in condemnation award where land taken was subject to possible rights of reverter or reentry, 81 A.L.R.2d 568.
Right to damages or compensation upon condemnation of property, of holder of unexercised option to purchase, 85 A.L.R.2d 588.
Changes in purchasing power of money as affecting compensation in eminent domain proceedings, 92 A.L.R.2d 772.
Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings, 2 A.L.R.3d 1038.
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.
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.
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.
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 proceedings, 84 A.L.R.3d 946.
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.
Sufficiency of condemnor's negotiations required as preliminary to taking in eminent domain, 21 A.L.R.4th 765.
Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding, 23 A.L.R.4th 631.
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.
Solar energy: landowner's rights against interference with sunlight desired for purposes of solar energy, 29 A.L.R.4th 349.
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.
Admissibility of hospital records under Federal Business Records Act (28 USC sec. 1732(a)), 9 A.L.R. Fed. 457.