SECOND DIVISION

MILLER, P. J.,

DOYLE and REESE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 27, 2017

In the Court of Appeals of Georgia

A17A1109. WHITE v. DEPARTMENT OF TRANSPORTATION DO-044

DOYLE, Judge.

This appeal arises from a declaration of taking and petition to condemn

property by the Department of Transportation (“DOT”) for construction of a retaining

wall related to State Route 16. The petition was filed as to land known as Parcel 32,

which consists of a shopping center with multiple, separately owned but connected

buildings, one of which is owned by appellant, James White, Jr., who also owns an

easement in the shopping center parking lot and ingress/egress easements from the

rear of his building to the parking lot and from the parking lot to the road. White

appealed DOT’s declaration of taking, disputing that the compensation offered by
DOT was just.

1 DOT filed a motion for partial summary judgment. White appealsthe

trial court’s grant of DOT’s motion, arguing that (1) there is a factual dispute

regarding whether his property was included as part of the condemned property, and

(2) summary judgment wasimproper because his access easement rights were altered

causing consequential damages. For the reasons that follow, we affirm.

“Generally, the issue of whether compensation is just and adequate is a jury

question, not susceptible to summary judgment[, and t]he burden of proving just and

adequate compensation is on the condemnor[.]”

2 Nevertheless, if it appears from the

pleadings and evidence that there is no issue of material fact, then a party moving for

summary judgment “is entitled to summary judgment as a matter of law.”3

So viewed, the evidence shows that on March 22, 2013, DOT condemned a

portion of Parcel 32, including .040 acres of land for additional right of way for

widening State Route 16 in Monticello, Georgia; .094 acres of permanent easement;

and 2 temporary driveway easements. Parcel 32 is entirely owned by Mary Patrick,

1 White also filed an inverse condemnation case to preserve his rights to just

compensation; however, that action is not before this Court at this time. 

2

(Citations omitted.) Lee v. City of Atlanta, 219 Ga. App. 264, 267 (4) (464

SE2d 879) (1995). 

3

 Id. at 265 (2).

2
asthe Trustee under the Last Will and Testament of Walter Fred Armistead, deceased.

DOT named Mary Patrick, White, and a number of other related owners, leasees, and

interested persons in its petition to condemn.

Out of all the named owners, White was the only one to file an appeal. It is

undisputed that Parcel 32 contains a shopping center and parking lot, and White owns

an 8,125 square foot tract of land (“Tract A”) covered by a commercial building (also

owned by White) within the shopping center and bounded on the north, south, and

west by Parcel 32.

4 A building owned by a third party flanks the remaining east side

of Tract A. White also owns a parking and access easement on Parcel 32 that provides

for White, his tenants, and his customers: non-exclusive parking in the shopping

center parking lot, ingress and egress from State Route 16 over Parcel 32, and an

additional 20-foot wide easement for access from the shared parking lot around the

shopping center to the rear of White’s building for loading dock access. The portion

of Parcel 32 taken by DOT consists of the northern most portion of Parcel 32 fronting

State Route 16. 

4 White leased the property to a discount retail chain store, but the lease ended

and the store moved out of the property around the same time as the condemnation. 

3
Licensed professional engineer William Price averred that no portion of Tract

A is part of the condemned property. The deposition of real estate appraiser Michael

Biggers was presented by White, and Biggers deposed that White was owed

compensation in the amount of $2,445 for the condemnation’s impact solely to his

parking easement on Parcel 32. Additionally, Biggers testified that he calculated

consequential damages to be a 50 percent reduction in the estimated value of Tract

A due to the taking of a portion of Parcel 32 (from$122,400 to about $60,000), which

he based on the addition of a wall and guardrail that affect building visibility, the

steep grading on the driveway that affects accessability, the taking of a sign, and

potential increased water flow from the steep grading. Biggers testified that White’s

property consisted of a building and an easement, neither of which would be worth

much without the other. Price averred that the original access points to the shared

parking lot were reconnected to State Route 16 after widening and construction of the

retaining walls was completed. Biggers, however, testified that the western driveway

was more steeply graded than before, which made the property less accessible for

many of the vehicles common in a rural area such as this. 

The trial court granted DOT’s motion for partial summary judgment, finding

that while White may seek compensation for his easement interest in the land for

4
which it awarded White $2,445, he could not recover damages to his contiguous

property in the condemnation proceeding itself, finding instead that White needed to

pursue those claims in an inverse condemnation action. 

White contends that there is a question of fact as to whether Tract A was

considered part of Parcel 32 for ownership purposes, or alternatively, he contendsthat

the trial court should have addressed his claims for consequential damages to Tract

A based on the taking of his easement rights in Parcel 32. We agree with the trial

court, however, thatWhite’s consequential damages claimtoTract A must be pursued

in his inverse condemnation action.

It is axiomatic that

in order for a condemnee to recover consequential damages to the

remainder of his property when only a part is taken, it must appear that

the damages to the remainder proximately and naturally arose from the

condemnation and taking of the condemnee’s own property.

Consequential damages to a contiguous tract of land having a different

ownership from that in which the taking occurs may be real and may in

fact exist, but a separate owner’s claim for consequential damages to

his land contiguous to the tract where the taking occurs cannot be

asserted in a condemnation action. Consequential damages to ‘the

remainder of the tract in which the taking occurs’ are the only

5
consequential damages that may be recovered in the condemnation

action.

5

Despite his arguments otherwise, White presented no evidence of common

ownership of Tract A and Parcel 32. Tract A, although landlocked, is a contiguous

parcel for the purposes of condemnation.

6 White does not argue on appeal that the

trial court’s award of $2,445 was not a sufficient award for the damages he sustained

to his easement over Parcel 32,

7

and the remainder of his claim — the consequential

damages as testified to by Biggers that diminished the value of Tract A as a result of

5

 (Punctuation omitted; emphasis in original.) Dept. of Transp. v. Simon, 151

Ga. App. 807, 810 (1) (261 SE2d 710) (1979), quoting Ga. Power Co. v. Bray, 232

Ga. 558, 560 (207 SE2d 442) (1974), and citing Southwire Co. v. Dept. of Transp.,

147 Ga. App. 606, 607 (1) (249 SE2d 650) (1978).

6

 See, e.g, Bray, 232 Ga. at 560; Simon, 151 Ga. App. at 811 (1).

7 See Dept. of Transp. v. Whitehead, 253 Ga. 150, 152 (2) (317 SE2d 542)

(1984). See also Lee, 219 Ga. App. at 266 (3) (explaining that an owner of an

easement is entitled to compensation measured by the value of the easement when the

easement is extinguished by eminent domain). And we note that while DOT conceded

White could “recover consequential damages in this condemnation action for the

reduction in the value of his easement interest, if any, in the remainder of the subject

property (Parcel 32) proximately caused by the normal and proper maintenance and

operation of the public improvement on the part of the property that was taken,”

White has put forth no evidence or argument that he in entitled to such damages

beyond the $2,445 awarded by the trial court.

6
DOT’s condemnation of Parcel 32 and changesto that property — must be addressed

in his inverse condemnation action.

8 While this creates the need for two cases to

address very similar subject matter, this is the rule in Georgia.9

Judgment affirmed. Miller, P. J., and Reese, J., concur.

8 See Bray, 232 Ga. at 560. White’s argumentsthat the estimated value of Tract

A has been reduced due to the taking of a portion of Parcel 32, the addition of a wall

and guardrail, the steep grading on the driveway, a taking of a sign, and increased

water flow are appropriately addressed via his inverse condemnation claim. 

9 See Simon v. Dept. of Transp., 245 Ga. 478, 479 (265 SE2d 777) (1980)

(“Though the law generally favors the prevention of a multiplicity of actions, it

appears that condemnation law in Georgia rather strictly limits the relevant evidence

in condemnation cases and therefore separate suitsfor different kinds of damages are

not uncommon.”).

7