GA Code § 22-2-137 (2021)
2021 Georgia Code|Title 22 - Eminent Domain|Chapter 2 - Condemnation Procedure Generally|Article 3 - Proceeding Before Court|§ 22-2-137. 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 board of assessors 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 board of assessors 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 actually taken for such public improvement.    (Code 1933, § 36-1117, enacted by Ga. L. 1966, p. 320, § 1; Ga. L. 2011, p. 752, § 22/HB 142.)   Law reviews.   - 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).    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).   Measure of damages is pecuniary loss sustained by owner.    - 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. Ordinarily this loss is represented by the fair market value of the property interest taken, but it may be the fair and reasonable value of the property taken if in fact the market value would not coincide with the actual value thereof. Polk v. Fulton County, 96 Ga. App. 733, 101 S.E.2d 736 (1957).    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).    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).    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).   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 type generally bought or sold in the open market. Housing Auth. v. Southern Ry., 245 Ga. 229, 264 S.E.2d 174 (1980).   Private riverfront property is not unique.    - Neither "privacy," which is inherent in ownership of all property, nor the fact that the condemned land was "riverfront" property, would authorize a charge on the condemned property having a value "peculiar" to the owner, or that the realty was "unique." Macon-Bibb County Water & Sewerage Auth. v. Reynolds, 165 Ga. App. 355, 299 S.E.2d 592 (1983).    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 one'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).   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).   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).   Value finding will not be set aside if within range of evidence.    - A value finding in a condemnation case will not be set aside on appeal as inadequate or excessive when it is within the range of the evidence. Freedman v. Housing Auth., 108 Ga. App. 418, 136 S.E.2d 544 (1963).   Expert testimony on impact of temporary easement and value.    - In a condemnation action, an expert was properly allowed to testify that a temporary easement had not diminished the fair market value of the land. If evidence could be adduced that the taking of a temporary easement had diminished the fair market value, competent evidence could also be admitted to establish the fact that the temporary taking had not diminished the fair market value. Bulgin v. Ga. DOT, 292 Ga. App. 1, 663 S.E.2d 730 (2008).   Changes in zoning regulations can be pertinent to value.    - When an owner's property would probably be rezoned, the trial court did not abuse the court's discretion in admitting the evidence thereof; however, testimony of the "highest and best use" of the property, by itself, was inadmissible when it involved a use precluded by the applicable zoning regulations in effect as of the date of taking. Unified Gov't v. Watson, 276 Ga. 276, 577 S.E.2d 769 (2003).    Cited in City of Douglas v. Rigdon, 116 Ga. App. 306, 157 S.E.2d 66 (1967).   RESEARCH REFERENCES   Am. Jur. 2d.   - 26 Am. Jur. 2d, Eminent Domain, §§ 112 et seq., 233 et seq.   Market Value of Single-Family Residence - Market Comparison Appraisal, 5 POF2d 411.   Highest and Best Use of Property Taken Under Eminent Domain, 19 POF3d 613.   Probable Zoning Change as Bearing on Proof of Market Value in Eminent Domain Proceeding, 40 POF3d 395.   9A Am. Jur. Pleading and Practice Forms, Eminent Domain, § 90 et seq.   C.J.S.   - 25 C.J.S., Damages, § 1 et seq.   ALR.    - 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.    Measure of compensation in eminent domain to be paid to state or municipality for taking of public highway or street, 160 A.L.R. 955.   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.   Admissibility, in eminent domain proceedings, 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.   Fire risk or hazard as element of damages in condemnation proceedings, 63 A.L.R.2d 313.   Changes in purchasing power of money as affecting compensation in eminent domain proceedings, 92 A.L.R.2d 772.   Unity of ownership necessary to allowance of severance damages in eminent domain, 95 A.L.R.2d 887.   Eminent domain: use or improvement of highway as establishing grade necessary to entitle abutting owner to compensation on subsequent change, 2 A.L.R.3d 985.   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.   Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.   Condemned property's location in relation to proposed site of building complex or similar improvement as factor in fixing compensation, 51 A.L.R.3d 1050.   Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.   Good will as element of damages for condemnation of property on which private business is conducted, 81 A.L.R.3d 198.   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.   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.   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.   Elements and measure of compensation in eminent domain proceeding for temporary taking of property, 49 A.L.R.6th 205.