GA Code § 22-2-109 (2021)
2021 Georgia Code|Title 22 - Eminent Domain|Chapter 2 - Condemnation Procedure Generally|Article 2 - Proceeding Before Special Master|§ 22-2-109. Factors to Be Considered in Determining or Estimating Just and Adequate Compensation; Determination of Date of Taking; Inclusion of Date of Approval of Original Location of Highway in Petition for Condemnation; Newspaper Advertisement

  In determining or estimating just and adequate compensation to be paid to the owner of any property or interest condemned for public road and street purposes, neither the special master nor the special master panel, in the event such a panel exists, nor the jury, in the event of an appeal to a jury, shall be restricted to the agricultural or productive qualities of the land; but inquiry shall be made as to all other legitimate purposes to which the land could be appropriated. The date of taking as contemplated in this Code section shall be the date of the filing of the condemnation proceedings for the acquisition of the property or interest.   The condemning authority shall cause the petition for condemnation to set forth the date of the approval of the original location of the highway. It shall be the further duty of the condemning authority, within 30 days from the date of the original approval and designation of said location as a highway, to cause the location of said highway in said county to be advertised once each week for four consecutive weeks in the newspaper of the county in which the sheriff's advertisements are carried; and said advertisement shall designate the land lots or land districts of said county through which such highway will be located. Said advertisement shall further show the date of the said original location of such highway as hereinbefore provided for in this subsection. Said advertisement shall further state that a plat or map of the project showing the exact date of original location is on file at the office of the Department of Transportation, and that any interested party may obtain a copy of same by writing to the Department of Transportation (One Georgia Center, 600 West Peachtree NW, Atlanta, Georgia 30308) and paying a nominal cost therefor.   In determining just and adequate compensation for property or interests taken or condemned for public road and street purposes, the award of the special master or the special master panel, in the event such a panel exists, or the verdict of the jury, in the event of an appeal, shall, in addition to fixing the value of the land actually taken and used for such purposes, take into consideration the prospective and consequential damages to the remaining property or interest from which the property or interest actually taken was cut off, which consequential damages result to such remaining property or interest because of the location of such public road or street upon the portion actually taken. In addition, the increase of the value of such remaining property or interest from the location of such public road or street shall be considered. Such consequential benefits, if any, may be offset against such consequential damages, if any; but in no event shall consequential benefits be offset against the value of the property or interest taken for such public improvement.    (Ga. L. 1966, p. 320, § 2; Ga. L. 1998, p. 1539, § 4; Ga. L. 2011, p. 752, § 22/HB 142.)   Cross references.   - Provisions regarding condemnation of property for public road purposes, § 32-3-4 et seq.   Law reviews.   - For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U.L. Rev. 115 (1998). For survey article on real property law, see 59 Mercer L. Rev. 371 (2007). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For comment on State Hwy. Dep't v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557 (1966), see 3 Ga. St. B.J. 483 (1967).   JUDICIAL DECISIONS    What is just and adequate compensation is justiciable question, and only the judiciary can lawfully determine that question. Calhoun v. State Hwy. Dep't, 223 Ga. 65, 153 S.E.2d 418 (1967).   Applicability.    - It was error to hold that the date of taking property to acquire an easement for electrical transmission and distribution lines was the date of filing of the original condemnation petition; because the property was not being condemned for public street and road purposes, the date of taking was not governed by O.C.G.A. § 22-2-109, but by O.C.G.A. §§ 22-2-110 and22-2-111, and thus the date of taking was when the amount provided in the award was paid into the trial court's registry. Orr v. Ga. Transmission Corp., 281 Ga. 754, 642 S.E.2d 809 (2007).    There are only two elements of damages to be considered in condemnation proceeding: first, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner's property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned. Simon v. Department of Transp., 245 Ga. 478, 265 S.E.2d 777 (1980).    Anything that actually enhances value of land must be considered in order to meet the constitutional demand that the owner be paid before the taking, adequate and just compensation. DOT v. Arnold, 154 Ga. App. 502, 268 S.E.2d 775 (1980).    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).    Measure of consequential damages, if any, to the property which the condemnee retains, is the market value of the remainder in its circumstances just prior to the time of the taking, as compared with its market value in its new circumstances just after the time of the taking. Simon v. Department of Transp., 245 Ga. 478, 265 S.E.2d 777 (1980).   Compensable damage must differ in kind from damage to general public.    - Damage suffered by the condemnee which is different from that suffered by the general public in degree only, and not in kind, is not compensable or recoverable. Dougherty County v. Snelling, 132 Ga. App. 540, 208 S.E.2d 362 (1974), overruled on other grounds, Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 227 S.E.2d 362 (1976).    Land and its natural components are one subject matter and what is required is evidence of the fair market value of that one subject matter. DOT v. Brooks, 153 Ga. App. 386, 265 S.E.2d 610 (1980).    The only relevant inquiry in an appeal from the amount awarded by the special master was the overall value of the property condemned pursuant to this Article, with the fact that the property contained "chewacla" soil being taken into account; the trial court did not err in excluding irrelevant testimony as to the separate value of the "chewacla" soil located on the property. Williams v. Mayor of Carrollton, 195 Ga. App. 590, 394 S.E.2d 389 (1990).    Improvements on land are proper subjects for independent valuation in consideration of the just and adequate compensation for the total property taken. DOT v. Brooks, 153 Ga. App. 386, 265 S.E.2d 610 (1980).    Existing zoning regulations can be pertinent in a condemnation proceeding. DOT v. Brooks, 153 Ga. App. 386, 265 S.E.2d 610 (1980).    Attorneys' fees need not be included in the measure of 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).    Lost profits may be used as 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).   Change in traffic pattern.    - Adjoining owners of property or operators of businesses on property adjoining a street or highway have no vested interest in the traffic pattern which controlling authorities may provide for the public street from time to time. If they suffer damage when the pattern is changed it is a damage suffered by members of the general public owning property or operating businesses adjacent to a street or highway, and for which there can be no recovery. The damage is not peculiar to the condemnees. Dougherty County v. Snelling, 132 Ga. App. 540, 208 S.E.2d 362 (1974), overruled on other grounds, Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 227 S.E.2d 362 (1976).   Property is "unique" when fair market value will not afford just compensation.    - Since valuing property at its fair market value presupposes a willing buyer and a willing seller, properties are "unique" such that fair market value will not afford just and adequate compensation when they 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. DOT v. Dixie Hwy. Bottle Shop, Inc., 245 Ga. 314, 265 S.E.2d 10 (1980).    "Unique" property is measured by 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).   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 lessee's 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).   Remaining term of lease determined.    - When a lease provided that, for four additional five-year terms, tenants had the option of extending the lease, although rent for the renewal periods was not agreed to, the trial court correctly held that the tenants had only a nine month's tenancy remaining on the date of taking because the 20-year renewal provision was unenforceable for a lack of certainty as to the amount of rent for that renewal period. Cann v. Metropolitan Atlanta Rapid Transit Auth., 196 Ga. App. 495, 396 S.E.2d 515 (1990).   Enhancement or impairment of value and lost profits not part of market value.    - The enhancement or impairment of value of the land, or the loss of profits resulting from the announcement of condemnation proceedings are not part of market value for the purposes of just and adequate compensation. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800, 189 S.E.2d 114 (1972).   Loss of established business separate item from value of building.    - The loss of an established business is a separate and distinct item from the amount which a condemnee is entitled to recover as the actual value of the condemnee's building. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800, 189 S.E.2d 114 (1972).   Market value of property a jury question.    - Market value of property taken by the Department of Transportation is a matter of opinion, and may be established by direct as well as circumstantial evidence; it is peculiarly a matter for the jury, and the jury is not absolutely bound even by uncontradicted testimony of experts, but may consider the nature of the property involved, together with any other fact or circumstance properly within the knowledge of the jury which tends to establish the value of the property, and may arrive at a different figure than that of the experts, higher or lower, when the verdict reached is not so disparate as to justify an inference of gross mistake or undue bias. DOT v. Delta Mach. Prods. Co., 157 Ga. App. 423, 278 S.E.2d 73 (1981).   Jury consideration of actual value of land.    - While there may be circumstances in which the market value of the total property and the actual value of the improvements plus the actual value of the land are not the same, in such event the jury may still consider the actual value of the land or interest therein appropriated. DOT v. Brooks, 153 Ga. App. 386, 265 S.E.2d 610 (1980).   Pro rata valuation in partial taking not authorized.    - Charge to jury which employed a pro rata method of assessing the value of a partial taking was erroneous; statutes which govern the manner of assessment and set out the factors considered in determining compensation do not express such a relational mode. Bland v. Bulloch County, 205 Ga. App. 317, 422 S.E.2d 223, cert. denied, 205 Ga. App. 899, 422 S.E.2d 223 (1992).   Jury cannot consider value of property prior to time of taking.    - Since the compensation to be paid for property condemned is to be determined by its value at the time of its actual taking, a jury cannot consider the value at a time prior to the actual time of taking. West v. City of Atlanta, 123 Ga. App. 255, 180 S.E.2d 277 (1971).   Jury cannot determine date of taking for compensation purposes.    - The jury is not free to determine on the evidence that some date prior to the initiation of condemnation proceedings but after the announcement of the intent to condemn is the date of taking for the purposes of just and adequate compensation. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800, 189 S.E.2d 114 (1972).   Testimony of expert who examines property before and after taking.    - When an expert witness testifies as to the value of property in a condemnation case, and the examination of the witness discloses that the witness's examination of the property had been made both before and after the date of taking, this does not prevent the witness's testimony from having probative value as to the date of taking when the witness testifies as to the witness's familiarity with the property as of the date of taking. The witness's entire testimony cannot be excluded. West v. City of Atlanta, 123 Ga. App. 255, 180 S.E.2d 277 (1971).    It was not error to fail to charge on consequential benefits when, although two witnesses mentioned consequential benefits, there was no evidence as to such benefits from which the jury could reasonably estimate the amount. City of Alma v. Morris, 180 Ga. App. 420, 349 S.E.2d 277 (1986).   Nonexpert opinion on value.    - When each of the nonexpert witnesses showed familiarity with the property in question, knowledge of sales in the vicinity, and consequently knowledge of land values in the community, the cross- examination revelation that there may have been a lack of understanding as to many factors involved in formally determining land value may have served to weaken and discredit the testimony but did not render it inadmissible or incompetent. City of Alma v. Morris, 180 Ga. App. 420, 349 S.E.2d 277 (1986).   Condemnor's testimony, standing alone, held inadmissible on question of consequential damages.    - When a limited access highway is condemned by the state, which highway cuts off several acres from the remainder of the land of the condemnee leaving those several acres without any access thereto, testimony offered by the condemnor that with access there would be no damage to the isolated land, standing alone, is inadmissible and without probative value on the question of consequential damages to those several acres without access. State Hwy. Dep't v. Howard, 124 Ga. App. 76, 183 S.E.2d 26 (1971).    Cited in Simmons v. Webster County, 225 Ga. App. 830, 485 S.E.2d 501 (1997).   RESEARCH REFERENCES   Am. Jur. 2d.   - 26 Am. Jur. 2d, Eminent Domain, § 112 et seq. 27 Am. Jur. 2d, Eminent Domain, §§ 433 et seq, 440, 485.   9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 90 et seq.   C.J.S.   - 29A C.J.S., Eminent Domain, §§ 346 et seq., 380 et seq.   ALR.    - Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98.    Measure of damages or compensation where property is taken to widen street, 64 A.L.R. 1513.    Right of property owner to compensation for diversion of traffic by relocation or rerouting of highway, 118 A.L.R. 921.    Deduction of benefits in determining compensation or damages in eminent domain, 145 A.L.R. 7.    What physical construction amounts to a change of grade within statute relating to award of damages, 156 A.L.R. 416.   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.   Fire risk or hazard as element of damages in condemnation proceedings, 63 A.L.R.2d 313.   Cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings, 69 A.L.R.2d 1453.   Changes in purchasing power of money as affecting compensation in eminent domain proceedings, 92 A.L.R.2d 772.   Eminent domain: restrictive covenant or right to enforcement thereof as compensable property right, 4 A.L.R.3d 1137.   Propriety and effect, in eminent domain proceedings, of argument or evidence as to source of funds to pay for property, 19 A.L.R.3d 694.   Eminent domain: admissibility, on issue of value of condemned real property, of rental value of other real property, 23 A.L.R.3d 724.   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.   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: condemnor's liability for costs of condemnee's expert witnesses, 68 A.L.R.3d 546.   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.   Assemblage or plottage as factor affecting value in eminent domain proceedings, 8 A.L.R.4th 1202.   Eminent domain: compensability of loss of view from owner's property - state cases, 25 A.L.R.4th 671.   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.   Abutting owner's right to damages for limitation of access caused by traffic regulation, 15 A.L.R.5th 821.   Elements and measure of compensation in eminent domain proceeding for temporary taking of property, 49 A.L.R.6th 205.