GA Code § 22-2-102 (2021)
2021 Georgia Code|Title 22 - Eminent Domain|Chapter 2 - Condemnation Procedure Generally|Article 2 - Proceeding Before Special Master|§ 22-2-102. Requirements for Condemnation; Time of Hearing; Directions for Notice and Service; Attachment of Process to Petition; Cause to Proceed in Rem

  In addition to the requirements set forth in Chapter 1 of this title, whenever it is desirable, for any reason, to arrive at a quick and certain determination of the compensation to be paid first to the condemnee for the taking or damaging of private property, the condemnor shall:   File a petition in a superior court having jurisdiction for a judgment in rem against the property or interest therein, as provided in Code Section 22-2-130; and   At or before the filing of the petition, present a copy of the petition to a judge of the superior court of the county wherein the property or interest sought to be condemned is located. Thereupon, unless waived by the parties the judge shall have a hearing in court, in chambers, or by telephone with the parties not less than ten days nor more than 30 days from the filing of the petition to appoint a special master. After such hearing, the judge shall make an order requiring the condemnor, the person in possession of the property or interest, and each person with a legal claim or interest to appear at a hearing before a special master at a time and place specified in the order and to make known their rights, if any, in and to the property or interest sought to be condemned, their claims as to the value of the property or interest, and any other matters material to their respective rights.     The hearing before the special master shall take place not less than 30 days nor more than 60 days after the date of the entry of the order appointing the special master.   The order shall give such directions for notice and the service thereof as are appropriate and as are consistent with this article, in such manner as to provide most effectively an opportunity to all parties at interest to be heard. In condemnations for purposes of constructing or expanding one or more electric transmission lines, in addition to service of the order, a copy of the order shall be mailed by certified mail or sent by statutory overnight delivery to any person shown by the public ad valorem tax records of the county in which the property is located to have an interest in the property and to any other person having open and obvious possession of the property. It shall not be necessary to attach any other process to the petition except the order so made, and the cause shall proceed as in rem.    (Ga. L. 1957, p. 387, § 5; Ga. L. 2004, p. 568, § 1; Ga. L. 2006, p. 39, § 8/HB 1313.)   Editor's notes.   - Ga. L. 2004, p. 568, § 3, not codified by the General Assembly, provides that the amendment to this Code section: "shall apply to the exercise of eminent domain to acquire easements or other property interests for which land acquisition negotiations for purposes of constructing or expanding one or more electric transmission lines begin on or after such date. The provisions of this Act relating to additional compensation, reconveyance, and quitclaim shall apply to easements and other property interests acquired on or after July 1, 2004, through the exercise of eminent domain."   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 only apply to petitions for condemnation filed on or after April 4, 2006.   Law reviews.   - For article on 2004 amendment of this Code section, see 21 Ga. St. U.L. Rev. 157 (2004). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009).   JUDICIAL DECISIONS   Procedure satisfies due process.    - Ga. L. 1957, p. 387, § 5 (see O.C.G.A. § 22-2-102) supplemented by Ga. L. 1957, p. 387, §§ 10 and 11 (see O.C.G.A. §§ 22-2-107 and22-2-108) provides reasonable notice and opportunity for a condemnee to be heard and therefore satisfies the constitutional provisions as to due process. Kellett v. Fulton County, 215 Ga. 551, 111 S.E.2d 364 (1959).   Government property not "private property."    - "Private property" does not include property owned by a government or a governmental entity. DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).    Department of Transportation may not condemn municipally owned property as the legislature has not clearly granted such authority or created a procedure therefore, and as such grant may not be implied from statutory provisions generally establishing a procedure for state agencies to condemn "private property." DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).    Condemnation by special master is expeditious method of arriving at just and adequate compensation to be paid a citizen before the citizen's interest in property may be condemned. Such is accomplished by having a special master appointed to hear evidence as to the value of the property taken and the damage done and then to make an award upon which the superior court can enter a judgment immediately vesting title in the condemnor upon payment of the amount awarded. Shoemaker v. Department of Transp., 240 Ga. 573, 241 S.E.2d 820 (1978); Allen v. Hall County, 156 Ga. App. 629, 275 S.E.2d 713 (1980).    All legal issues relating to condemnation may be raised and determined in special master proceeding. If no exceptions are taken to the master's findings or no regular appeal taken from the judgment based on the master's award, the only issue remaining is that of value. Allen v. Hall County, 156 Ga. App. 629, 275 S.E.2d 713 (1980).   Noncompliance with notice requirement.    - Condemnation hearing before a special master held less than ten days after the condemnee was served with the order was void for violation of the requirements of O.C.G.A. § 22-2-102. Black v. Fayette County, 265 Ga. 175, 453 S.E.2d 692 (1995).   Functions of special master.    - Though the primary duty of the special master is to ascertain the value of the property sought to be condemned, the special master is authorized to hear and determine any legal objections that may be raised by the parties, including, the right of the condemnor to condemn, the interest, the nature of the interest taken and the effect of the condemnation upon the respective rights of the parties. Shoemaker v. Department of Transp., 240 Ga. 573, 241 S.E.2d 820 (1978); Allen v. Hall County, 156 Ga. App. 629, 275 S.E.2d 713 (1980).   Condemnor vested with broad discretion as to necessity of taking.    - It is clear that in enacting Ga. L. 1957, p. 387, § 1 et seq., the General Assembly intended to vest a very broad discretion in the condemning authority as to the necessity for the taking, and that "other matters material" to the rights of condemnees generally might be determined under proper pleadings in the case. City of Carrollton v. Walker, 215 Ga. 505, 111 S.E.2d 79 (1959).   Broad discretion as to selection of property.    - Large discretion is vested in a party having the right to condemn, in the selection of particular property to be condemned. Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 227 S.E.2d 362 (1976).    Time for filing of defensive pleadings (as opposed to their sufficiency) is governed by the special statutory procedure of Ga. L. 1957, p. 387, § 1 et seq. Nodvin v. Georgia Power Co., 125 Ga. App. 821, 189 S.E.2d 118 (1972).   Amendment of petition to provide more specific description.    - A condemnor may amend its petition by striking two paragraphs describing the proposed right of way and the uses of the right of way, and stating two new paragraphs, where all that the amendment does is to put the condemnees on notice of a more specific description of the right of way sought to be condemned and the proposed use of the right of way. Leach v. Georgia Power Co., 228 Ga. 16, 183 S.E.2d 755 (1971).   Proceeding under general civil practice rules cannot follow final adjudication.    - When there has been a final adjudication in a special master condemnation proceeding which is designed to be expeditious, a party may not later tender an answer to the petition under the general rules of civil practice. Nodvin v. Georgia Power Co., 125 Ga. App. 821, 189 S.E.2d 118 (1972).   Judicial review of master's findings.    - If the special master makes findings not only as to just and adequate compensation for the property taken but also as to other matters material to the condemnee's respective rights, the proper method for the condemnee to obtain judicial review of the special master's findings in regard to matters other than the just and adequate compensation for the property taken is to file objections to the special master's award prior to the court entering an order and making the award a judgment of the court. Georgia Power Co. v. Baggarley, 133 Ga. App. 399, 211 S.E.2d 23 (1974).    When legal objections are raised before and passed upon by the special master, to obtain review of these objections exceptions must be taken to the master's findings prior to the superior court's entry of an order and judgment condemning the property. If no exceptions are taken and the master's findings are made the judgment of the court, the court's judgment is final insofar as it adjudicates these legal issues, until set aside or reversed in a manner provided by law. Allen v. Hall County, 156 Ga. App. 629, 275 S.E.2d 713 (1980).   Condemnee bound by decision to use special master.    - Having chosen and agreed to use the special master proceeding, a condemnee is bound by the applicable law regarding the special master's proceeding. Metropolitan Atlanta Rapid Transit Auth. v. Central Parking Sys., 167 Ga. App. 649, 307 S.E.2d 93 (1983).   Objections or exceptions must be specific.    - Litigants have a responsibility to make their timely objections or exceptions to the award of the special master in specific rather than in generalized form. Beck v. Cobb County, 180 Ga. App. 808, 350 S.E.2d 818 (1986).   Failure to file exceptions constitutes waiver.    - 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).    Condemnation award and judgment, unexcepted to and unappealed from, is res judicata as to the issue of the existence and length of any leasehold interest. Therefore, the judgment in the condemnation proceeding is conclusive to all nonvalue issues raised on appeal. Allen v. Hall County, 156 Ga. App. 629, 275 S.E.2d 713 (1980).   Description of property sought held sufficiently definite.    - The condemnor's description of the right of way sought to be condemned was sufficiently definite when the petition (a) described with certainty the entire tract of land through which the right of way was to pass, (b) described the right of way in metes, bounds and distances, (c) described minutely the proposed construction of poles, lines, etc., for the transmission of electric current, and (d) included a plat showing the property sought to be condemned. Leach v. Georgia Power Co., 228 Ga. 16, 183 S.E.2d 755 (1971).   Dismissal of condemnation petition inappropriate.    - Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling their exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that it could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6. White v. Ringgold Tel. Co., 334 Ga. App. 325, 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).    Cited in Johnson v. Fulton County, 103 Ga. App. 873, 121 S.E.2d 54 (1961); Wiggins v. City of Macon, 120 Ga. App. 197, 169 S.E.2d 667 (1969); Leach v. Georgia Power Co., 228 Ga. 16, 183 S.E.2d 755 (1971); City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975); Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588, 239 S.E.2d 387 (1977); Hendley v. Housing Auth., 160 Ga. App. 221, 286 S.E.2d 463 (1981); Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984); McBroom v. Georgia Power Co., 192 Ga. App. 81, 383 S.E.2d 634 (1989); Styers v. Atlanta Gas Light Co., 263 Ga. 856, 439 S.E.2d 640 (1994); Ga. Power Co. v. Stowers, 282 Ga. App. 695, 639 S.E.2d 605 (2006).   RESEARCH REFERENCES   Am. Jur. 2d.   - 27 Am. Jur. 2d, Eminent Domain, §§ 365 et seq., 416 et seq.   C.J.S.   - 29A C.J.S., Eminent Domain, § 250 et seq.   ALR.   - Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.