(Ga. L. 1957, p. 387, § 14; Ga. L. 1998, p. 1539, § 7; Ga. L. 2006, p. 39, § 13/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 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015).
JUDICIAL DECISIONS
This section provides for appeal from award of master to superior court when the issue as to the value of the property shall be tried by a jury. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).
Appeal in superior court only method of correcting special master's errors.
- The only method of correcting any errors the assessors or a special master may have made in the original hearing and award is not by recommittal to that body but by an appeal in the superior court, which begins again the process of adjudication. City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975); 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).
If an appeal is taken by any party to a jury, the trial judge commits error in remanding the case to the special master. The trial judge should rule on all legal issues, either by pretrial order or during the course of the trial, in the jury case pending before the judge. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 227 S.E.2d 362 (1976); Walker v. Georgia Power Co., 177 Ga. App. 493, 339 S.E.2d 728 (1986).
The trial judge erred when the judge determined that the judge was not going to conduct the proceedings de novo but instead decided to review the decision of the special master on nonvalue issues as though occupying an appellate position in the proceedings, thereby addressing only whether there was any evidence to support the special master's findings of fact and whether there were any errors of law in the special master's conclusions of law. 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).
Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112) was copied from former Code 1933, § 36-601 (see O.C.G.A. § 22-2-80) and consequently had the same meaning. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).
Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112) and former Code 1933, § 36-601 (see O.C.G.A. § 22-2-80) must be given the same meaning. Both provide that appeals must be in writing and filed in the superior court of the county where the award is filed and within ten days thereof. City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975).
Payment of award not prerequisite to filing appeal.
- Payment of the amount of the award of the special master into the registry of the court is not a prerequisite to filing an appeal for a jury trial. Metropolitan Atlanta Rapid Transit Auth. v. Central Parking Sys., 167 Ga. App. 649, 307 S.E.2d 93 (1983).
Ten-day period also applies to nonvalue issues.
- In order to comply with due process requirements, the ten days in which to file exception to value issues under O.C.G.A. § 22-2-112 applies to nonvalue issues as well. Sims v. City of Toccoa, 256 Ga. 368, 349 S.E.2d 385 (1986).
Appeal to superior court not timely filed when condemnee fails to follow procedure for making objections known.
- When the condemnee fails to follow the procedure required by law in condemnation in rem proceedings before a special master in seeking to have the condemnee's objections made known to the court and to the special master, the superior court may rule that the condemnee's appeal to the superior court from the award of the special master was not timely filed. Hendley v. Housing Auth., 160 Ga. App. 221, 286 S.E.2d 463 (1981).
Award becomes final if appeal not filed within ten days.
- If an appeal to a jury is desired it must be filed within ten days after the filing of the award or it becomes final. Hardy v. Georgia Power Co., 151 Ga. App. 805, 261 S.E.2d 748 (1979).
No exception to ten-day period for appeal.
- O.C.G.A. § 22-2-112 does not set forth any exception to the ten-day period, and the right to file an appeal extended to exceptions taken to an amended award not substantively changing an original award. Stafford v. Bryan County Bd. of Educ., 267 Ga. 274, 476 S.E.2d 727 (1996).
Entry of judgment on award prior to expiration of ten-day period.
- Because all conditions and limitations provided by the Special Master's Act must be strictly followed, a superior court's entry of judgment on an award prior to the expiration of the ten-day period is reversible error absent an acquiescence or waiver. Fowler v. City of Warm Springs, 238 Ga. App. 601, 519 S.E.2d 703 (1999).
Former Code 1933, § 6-102 (see O.C.G.A. § 5-3-20) did not extend time for filing notice of appeal specified in Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112). City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975).
Appeal to superior court is de novo proceeding.
- If an appeal is taken pursuant to this section to a jury in the superior court, the trial in the superior court is a de novo proceeding, and it is the duty of the trial judge, by pretrial order or during the course of the trial, to rule on all legal issues. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 227 S.E.2d 362 (1976).
An appeal by either party from the award of a special master is a de novo proceeding. Accordingly, if the case is tried again and the jury reaches a verdict smaller than the prepaid special master's award, the payor would be entitled to a judgment against the payee for the difference. Chastain v. Fayette County, 221 Ga. App. 118, 470 S.E.2d 513 (1996).
Sole question on appeal is amount of compensation.
- The sole question to be passed upon by the assessors, or a jury in the superior court on appeal, is the amount of compensation to be paid. Whether the quantity of land sought to be taken is necessary and proper for the purpose for which it is sought is a question not involved in such a proceeding. Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961).
When an appeal is taken from a special master's award to a jury in the superior court pursuant to this section, the only issue for decision by the jury is the value of the subject property taken. Taylor v. Taylor County, 231 Ga. 209, 200 S.E.2d 887 (1973).
While all issues may be raised in an appeal from the special master's award, the question of value is the sole issue to be submitted to the jury, and its fact-finding powers are limited to those facts directly touching on value. Walker v. Georgia Power Co., 177 Ga. App. 493, 339 S.E.2d 728 (1986).
What O.C.G.A. §§ 22-2-112 and 22-2-114 make very clear is that the court, and not the jury on appeal, will decide the quantity of interest of each condemnee and will also decide the quality of such interest. Walker v. Georgia Power Co., 177 Ga. App. 493, 339 S.E.2d 728 (1986).
Trial court properly denied condemnees' motion for jury trial "on all issues of law and fact" upon appeal from an award by a special master when the sole jury question was the amount of the compensation award. Benton v. Georgia Marble Co., 258 Ga. 58, 365 S.E.2d 413 (1988).
Exceptions to special master's rulings on issues of law.
- If an appeal to a jury in the superior court is not taken by one of the parties pursuant to this section, then exceptions to the rulings on issues of law made by the special master must be timely filed and presented to the trial judge for decision. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 227 S.E.2d 362 (1976).
One who does not except to the findings of the special master or appeal from the judgment of condemnation cannot, on the usual appeal to a jury on the question of value, raise legal issues by way of counterclaim or motion. Roberts v. Wise, 140 Ga. App. 1, 230 S.E.2d 320 (1976).
Special master's findings as to amount company was entitled to under condemnation proceeding were determinations of law; therefore, a jury trial under O.C.G.A. § 22-2-112 was an inappropriate method of appealing, and the company's failure to take exception to the findings acted as a waiver of its right to appeal. Big-Bin Dispos-All, Inc. v. City of Valdosta, 172 Ga. App. 746, 324 S.E.2d 501 (1984).
The failure of a party to file exceptions to the master's award for determination by the superior court results in a waiver of the party's right to further litigate any nonvalue issues. Beck v. Cobb County, 180 Ga. App. 808, 350 S.E.2d 818 (1986).
Since the condemnor never filed an exception to the special master's award concerning the requirement that it give the landowner advance notice of its entry onto the easement in non-emergency situations, and the superior court made the special master's award the judgment of the court, the trial court was correct when it determined that the notice provision was a viable portion of the condemnation judgment. Styers v. Atlanta Gas Light Co., 263 Ga. 856, 439 S.E.2d 640 (1994).
Trial court properly refused to dismiss a landowner's appeal on grounds that it failed to express dissatisfaction with the compensation awarded by the special master, as it provided the utility with notice that the landowner was objecting to the valuation given on the property; moreover, in light of the interest that the utility acquired in the property, and the purposes for which it intended to use that property, consequential damages potentially represented a significant portion of the compensation the landowner could recover. Ga. Power Co. v. Stowers, 282 Ga. App. 695, 639 S.E.2d 605 (2006).
Condemnation of a property owner's land by a city was upheld on appeal, as was the trial court's judgment entered upon a jury verdict in the amount of $63,361 for the property and an award of attorney fees to the city, because the property owner never challenged the valuation made by a special master and also removed the amount awarded from the registry, thereby estopping the owner from challenging the legality of the taking on appeal. Mayo v. City of Stockbridge, 285 Ga. App. 58, 646 S.E.2d 79 (2007), cert. denied, No. S07C1279, 2007 Ga. LEXIS 707 (Ga. 2007).
Right to jury trial on appeal does not extend to nonvalue issues.
- The right of the condemnees to appeal the award of the special master to a jury trial does not carry with it the right to have a jury trial on the other issues in the case. Leach v. Georgia Power Co., 228 Ga. 16, 183 S.E.2d 755 (1971).
Trial court erred in jury instructions.
- In a business's appeal of a special master's award of $5,000 for the loss of its business operation due to condemnation of the building it occupied and its challenge to a trial court judgment finding that it lacked a compensable business loss, that judgment was reversed because the trial court erred in its instruction to the jury on the uniqueness test by incorrectly stating that difficulty relocating the business in the same general area was not a test for uniqueness. Further, the trial court erred by instructing the jury not to consider evidence of the business's difficulty in relocating to a comparable site in the area. ABM Realty Co. v. Bd. of Regents, 296 Ga. App. 658, 675 S.E.2d 549 (2009).
Finality of special master's judgment during pendency of appeal.
- When an appeal to a jury as to value was pending, the judgment of condemnation under the special master's condemnation procedure was not a final judgment subject to review in the absence of a certificate as provided for by former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34). City of Atlanta v. Turner Adv. Co., 234 Ga. 1, 214 S.E.2d 501 (1975).
When property is condemned and the judgment provides that no compensation is to be paid by the condemnor, there is no question to be presented to a jury as to value, and such judgment is final and subject to review without a certificate. City of Atlanta v. Turner Adv. Co., 234 Ga. 1, 214 S.E.2d 501 (1975).
Market value is generally measure of damages.
- The general rule is that the measure of damages, excluding the question of consequential damages and benefits, is the market value of the property taken. State Hwy. Dep't v. Stewart, 104 Ga. App. 178, 121 S.E.2d 278 (1961).
Just and adequate compensation does not necessarily restrict recovery to market value when, by reason of special factors, the pecuniary value of the property to the owner is for some reason not the same as the actual cash market value. State Hwy. Dep't v. Stewart, 104 Ga. App. 178, 121 S.E.2d 278 (1961).
Market value defined.
- The market value of property is what a person who does not have to sell is willing to take from a person who is willing to buy but does not have to buy. State Hwy. Dep't v. Stewart, 104 Ga. App. 178, 121 S.E.2d 278 (1961).
Consideration of market value of land for any purpose.
- In determining the value of the land, the jury must consider the market value of the property for any purpose for which the land is suitable or the land is adapted. State Hwy. Dep't v. Stewart, 104 Ga. App. 178, 121 S.E.2d 278 (1961).
No bad faith shown on part of county.
- Record supported that the condemnation of the buffer property would serve a public purpose and that the county did not act in bad faith because failing to disclose the extent of methane migration provided no financial benefit for the county since at no time did the county discount the price the county was offering the property owner for the buffer property due to ignorance of the status of methane migration. Morgan County v. Gay, 352 Ga. App. 555, 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).
Consequential damages resulting from rentals lost before actual taking.
- After a judgment that a taking is complete, a condemnee may appeal to a jury under this section as to the consequential damages resulting from lost rentals during the period between the announcement of the intent to condemn and date for actual taking. Such an appeal is de novo as to the value of property taken or amount of damage done. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800, 189 S.E.2d 114 (1972).
Appeal governed by rules applicable to ordinary suits.
- The trial of an appeal from the award of the special master in the superior court, which is a de novo investigation, is a judicial proceeding governed by the rules applicable to ordinary suits in the jurisdiction. City of Gainesville v. Loggins, 116 Ga. App. 548, 158 S.E.2d 287 (1967), rev'd on other grounds, 224 Ga. 114, 160 S.E.2d 374 (1968).
Dismissal of appeal filed more than ten days after award.
- When, in a condemnation action, an appeal to a jury in superior court is filed more than ten days after the filing of the award of a special master, it is error for a trial court not to dismiss the appeal. Howell Enters., Inc. v. City of Atlanta, 123 Ga. App. 767, 182 S.E.2d 331 (1971).
An appeal not filed within the prescribed ten-day period is not timely and the proper judgment is one of dismissal. City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975); Williams v. Macon-Bibb County Water & Sewerage Auth., 202 Ga. App. 549, 414 S.E.2d 909 (1992).
When property owner's appeal to jury was untimely because it was not filed within ten days of the filing of the special master's award, the owner's earlier demand for jury trial, filed before a special master award existed, did not qualify as a timely appeal to the jury, and inasmuch as no appeal to the jury was filed after the award was made and within ten days after the award was filed, the county's motion to dismiss the appeal was granted. Gwinnett County v. Grant, 181 Ga. App. 304, 352 S.E.2d 391 (1986).
The circumstances of a condemnation proceeding under the Special Master Act, O.C.G.A. § 22-2-112, prior to the 2006 amendment to that statute, include the fact that neither the special master nor the court are obligated to serve the parties with the award, and as a result a party has a duty to exercise diligence in determining when the award was filed; in such a situation, due diligence requires more than relying solely on a third party to provide information that could be obtained directly from the court. Rutland v. Ga. Power Co., 286 Ga. App. 14, 648 S.E.2d 436 (2007).
As written, O.C.G.A. § 22-2-112 sets forth no exceptions to the ten day period to file an appeal from the date an award is filed with the superior court, and an appeal not filed within that ten day period is not timely and the proper judgment is one of dismissal. Rutland v. Ga. Power Co., 286 Ga. App. 14, 648 S.E.2d 436 (2007).
Payment of special master's award as condition precedent to appeal.
- A condemnor is not required to pay the award of the special master into the registry of the court within ten days after the filing of the award, or at the time of, or prior to the filing of the appeal as a condition precedent to its right of appeal. Arnold v. State Hwy. Dep't, 116 Ga. App. 201, 156 S.E.2d 469 (1967).
Payment of amount of verdict as condition precedent to appeal.
- Under the constitutional mandate that private property cannot be taken or damaged for public use without first paying just and adequate compensation to the owner, the payment of the amount of a jury verdict in excess of the prior appraisal by assessors, or special master, is a condition precedent to a valid appeal from such verdict and the judgment based thereon. City of Gainesville v. Loggins, 224 Ga. 114, 160 S.E.2d 374 (1968).
The payment of the amount of the jury verdict in excess of the prior appraisal by assessors, or special master, is a condition precedent to the condemnor seeking a second de novo jury trial. Paulk v. Georgia Power Co., 231 Ga. 721, 204 S.E.2d 154 (1974).
Tender of award to condemnee not condition precedent to condemnor's appeal.
- When a proceeding in rem is brought to condemn property for a public use, tender of the amount awarded by the special master to the apparent or ostensible owner of such property is not a condition precedent to the condemnor's right to pay the award into the registry of the court and enter an appeal to a jury. Hunt v. State Hwy. Dep't, 101 Ga. App. 797, 115 S.E.2d 384 (1960); Tillman v. State Hwy. Dep't, 101 Ga. App. 865, 115 S.E.2d 459 (1960); Slocumb v. Housing Auth., 101 Ga. App. 765, 115 S.E.2d 459 (1960); State Hwy. Dep't v. Taylor, 102 Ga. App. 15, 115 S.E.2d 703 (1960); State Hwy. Dep't v. Farmers Gin Co., 102 Ga. App. 35, 115 S.E.2d 760 (1960).
Entry of judgment when appeal results in lower award.
- When a special master makes an award to a condemnee, who subsequently is granted a jury trial on appeal which results in a lower award, the judgment should be entered even though the condemnor never appealed the award of the special master because an appeal by either party entitles both parties to a de novo determination of the issue. Smith v. Georgia Power Co., 131 Ga. App. 380, 205 S.E.2d 916 (1974).
Refusal by clerk of superior court to pay over amount awarded to condemnee which had been paid to such clerk by the condemnor in connection with its appeal for a jury trial is not a proper ground for dismissal of such appeal because when the condemnor pays the amount of the award of the assessors into the registry of the court, the condemnor is not thereafter concerned with its distribution, and, further, such condemnor is not responsible for the clerk's actions. State Hwy. Dep't v. Taylor, 102 Ga. App. 15, 115 S.E.2d 703 (1960).
Payment of award by delivery of check.
- The delivery of a check, in the amount of the condemnation award, to the clerk of the superior court is not payment of such amount into the registry of the court when sufficient funds to cover such check are not on deposit at the bank on which such check is drawn during the ten day period when an appeal may be filed. State Hwy. Dep't v. Farmers Gin Co., 102 Ga. App. 35, 115 S.E.2d 760 (1960).
When jury is unable to agree on whether condemnee is entitled to recover expenses of litigation, including attorney fees, the trial court is not authorized to grant the condemnee's motion for judgment notwithstanding the mistrial. DOT v. Glenn, 243 Ga. 21, 252 S.E.2d 906 (1979).
Trial court serves as trier of fact on nonvalue issues.
- There being no right to a jury trial on exceptions to the special master's rulings on nonvalue issues, the trial court sits as the trier of fact and its judgment will not be disturbed if there is any evidence in the record to sustain it. Metropolitan Atlanta Rapid Transit Auth. v. Central Parking Sys., 167 Ga. App. 649, 307 S.E.2d 93 (1983).
Evidentiary hearing not required.
- On appeal from a special master's award, the court was not required to conduct an evidentiary hearing on non-value issues because that would allow new evidence which was not before the special master or a repetition of evidence which should have been preserved by transcript. Simmons v. Webster County, 225 Ga. App. 830, 485 S.E.2d 501 (1997), cert. denied, 522 U.S. 1110, 118 S. Ct. 1041, 140 L. Ed. 2d 106 (1998).
Cited in Georgia S. & Fla. Ry. v. City of Warner Robins, 107 Ga. App. 370, 130 S.E.2d 151 (1963); Housing Auth. v. Baker, 119 Ga. App. 109, 166 S.E.2d 437 (1969); Wiggins v. City of Macon, 120 Ga. App. 197, 169 S.E.2d 667 (1969); Wilson v. City of Waycross, 130 Ga. App. 253, 203 S.E.2d 301 (1973); Sweat v. Georgia Power Co., 235 Ga. 281, 219 S.E.2d 384 (1975); Glynn County v. Victor, 143 Ga. App. 198, 237 S.E.2d 701 (1977); Shoemaker v. Department of Transp., 240 Ga. 573, 241 S.E.2d 820 (1978); DeKalb County v. Trustees, Decatur Lodge No. 1602, B.P.O. Elks, 145 Ga. App. 180, 243 S.E.2d 284 (1978); Oglethorpe Power Corp. v. Seasholtz, 157 Ga. App. 723, 278 S.E.2d 429 (1981); Turner v. City of Nashville, 167 Ga. App. 665, 307 S.E.2d 74 (1983); Metropolitan Atlanta Rapid Transit Auth. v. Gould Investors Trust, 169 Ga. App. 303, 312 S.E.2d 629 (1983); Stafford v. Bryan County Bd. of Educ., 219 Ga. App. 750, 466 S.E.2d 637 (1995).
RESEARCH REFERENCES
Am. Jur. 2d.
- 4 Am. Jur. 2d, Appellate Review, §§ 77 et seq., 189. 26 Am. Jur. 2d, Eminent Domain, §§ 6, 112 et seq. 27 Am. Jur. 2d, Eminent Domain, §§ 485 et seq., 637, 869 et seq.
C.J.S.- 29A C.J.S., Eminent Domain, § 396 et seq.
ALR.- Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.
Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.
Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment, 92 A.L.R.2d 346.