GA Code § 22-2-85 (2021)
2021 Georgia Code|Title 22 - Eminent Domain|Chapter 2 - Condemnation Procedure Generally|Article 1 - Proceeding Before Assessors|Part 5 - Appeals and Final Judgment|§ 22-2-85. Extent of Interest Obtainable by Condemnor Upon Condemnation

 Upon the payment by the condemnor of the amount of the award, or the amount of the final judgment if there is an appeal, the condemnor shall become vested with such interest in the property taken as may be necessary to enable the condemnor to exercise his franchise or conduct his business. Whenever the condemnor ceases using the property taken for the purpose of conducting his business, the property shall revert to the person from whom taken, his heirs or assigns. Notwithstanding any other provision of this Code section, whenever any municipality condemns land for protection against floods and freshets, that municipality may acquire a fee simple title to the property condemned on payment of the condemnation money. When such municipality has a population of more than 250,000 according to the last or any future decennial census of the United States, such municipality, or the county in which the major portion of such municipality is located, shall acquire a fee simple title to the property condemned upon payment of the condemnation money.   (Ga. L. 1894, p. 95, § 27; Civil Code 1895, § 4683; Civil Code 1910, § 5233; Ga. L. 1914, p. 61; Code 1933, § 36-606; Ga. L. 1945, p. 690, § 1; Ga. L. 1975, p. 1148, § 1.)   Cross references.   - Vesting of fee simple title in municipal or county housing authority upon exercise of power of eminent domain, § 8-3-10.   Law reviews.   - For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008).   JUDICIAL DECISIONS   Use of condemned property.    - The appropriation to public use amounts to a withdrawal only from such private uses as will interfere with the public use. Private use is of course to be subordinated to the public use, but, when the fee remains in the owner, the owner is entitled to make any use of the property which is not inconsistent with its use for the purpose for which it was taken. H.G. Hastings Co. v. Southern Natural Gas Corp., 45 Ga. App. 774, 166 S.E. 56 (1932).    A power company that acquired an electric transmission line easement by condemnation in 1985 had not permanently ceased using the land under O.C.G.A. § 22-2-85; thus, the landowner from whom the land was acquired was not entitled to recover possession of the land. Although the company had not constructed a line across the property, the company maintained the property and planned to construct the line in question after 2010 and before 2020 to meet increased power demands. William E. Honey Bus. Interest, LLLP v. Ga. Power Co., 291 Ga. App. 44, 661 S.E.2d 203 (2008), cert. denied, No. S08C1408, 2008 Ga. LEXIS 678 (Ga. 2008).   Applicability.    - Since the original condemnor acquired part of a 50-foot easement by grant and part by condemnation, O.C.G.A. § 22-2-85 was inapplicable in a condemnation action brought by the condemnor's licensee to change the use of the easement from a petroleum pipeline to a fiber optic communications system; even if O.C.G.A. § 22-2-85 were applicable, it was not shown that the condemnor had ceased using the pipeline for the purpose of conducting its business. Witcher v. Level 3 Communs., LLC, 272 Ga. App. 611, 612 S.E.2d 816 (2005).   Condemned property reverts to owner if purpose permanently ceases.    - The clause in this section relating to the reverter of the condemned use means that if the use of the condemned property in the business to be served permanently ceases, the property is not to be used for other purposes, but the easement ceases or reverts to the then owners of the servient land. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591, 84 L. Ed. 1013 (1940).    When a street railway condemned land for a trolley, it acquired an easement, not fee simple title. Therefore, the railway's interest reverted to the owner, the owner's heirs and assigns, when the land was no longer used as a trolley line. Cobb County v. Crew, 267 Ga. 525, 481 S.E.2d 806 (1997).    Although no deed need be executed, it will control if one is given. City of Atlanta v. Jones, 135 Ga. 376, 69 S.E. 571 (1910).    Term "right of way" as used in former Civil Code 1910, § 5207 (see O.C.G.A. § 22-1-6) was limited by former Civil Code 1910, § 5233 (see O.C.G.A. § 22-2-85), so that it was descriptive of the tenure only. A county may construct a highway thereon. Atlanta, B. & Atl. Ry. v. County of Coffee, 152 Ga. 432, 110 S.E. 214 (1921). See also Georgia G.R.R. v. Venable, 129 Ga. 341, 58 S.E. 864 (1907).   Condemnation of land abutting street.    - The property of a land owner abutting a street may be condemned, although the owner's interest in that street is not. Bridwell v. Gate City Term. Co., 127 Ga. 520, 56 S.E. 624, 10 L.R.A. (n.s.) 909 (1907).    When corporation acquires right to use property by condemnation, the condemnation does not vest in the condemnor only a personal right of use during the life or ownership of the condemnor, but vests the interest condemned in the condemnor just as though it had been conveyed to it. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591, 84 L. Ed. 1013 (1940).    When business is transferred to another who continues to use condemned property as before, the condemnor is still using it through the transferee, even though one die, or be dissolved if a corporation and the right to the use of the property acquired through condemnation does not cease. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591, 84 L. Ed. 1013 (1940).    Cited in Central of Ga. Ry. v. Lawley, 33 Ga. App. 375, 126 S.E. 273 (1925); State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204, 199 S.E. 793 (1938); State Hwy. Dep't v. Peavy, 204 Ga. 99, 48 S.E.2d 726 (1948); Taylor v. Georgia Power Co., 129 Ga. App. 89, 198 S.E.2d 701 (1973); DOT v. Garrett, 154 Ga. App. 104, 267 S.E.2d 643 (1980); Georgia Dep't of Transp. v. Woodard, 254 Ga. 587, 331 S.E.2d 557 (1985).   RESEARCH REFERENCES   Am. Jur. 2d.   - 26 Am. Jur. 2d, Eminent Domain, § 771 et seq.   C.J.S.   - 29A C.J.S., Eminent Domain, §§ 5 et seq., 623 et seq.   ALR.    - Reversion of title upon abandonment or vacation of public street or highway, 18 A.L.R. 1008; 70 A.L.R. 564.    Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98.    Provision for taking or retaining possession pending appeal in condemnation proceeding, 55 A.L.R. 201.    Title of interest acquired by railroad in exercise of eminent domain as fee or easement, 155 A.L.R. 381.   Condemnation, proceeding therefor, or prospect thereof, as affecting marketability of title, 21 A.L.R.2d 792.   Who, as between condemnor and condemnee, bears risk of loss or destruction of property occurring after commencement but before completion of eminent domain proceedings, 89 A.L.R.2d 1076.   Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.