GA Code § 22-3-20 (2021)
2021 Georgia Code|Title 22 - Eminent Domain|Chapter 3 - Exercise of Power of Eminent Domain for Special Purposes|Article 2 - Construction and Operation of Electric Power Plants|Part 1 - General Provisions|§ 22-3-20. Power of Persons Operating or Constructing Electric Plants to Purchase, Lease, or Condemn Rights of Way and Easements

 Any person operating or constructing or preparing to construct a plant for generating electricity shall have the right to purchase, lease, or condemn rights of way or other easements over the lands of others in order to run power lines, maintain dams, flow backwater, or carry on other activities necessary for constructing and operating such a plant, provided that the person first pays just compensation to the owner of the land to be affected.   (Ga. L. 1897, p. 68, § 1; Civil Code 1910, § 5240; Code 1933, § 36-801.)   Cross references.   - Granting of easements and rights of way to electric utilities for purposes of producing hydroelectric power from dam sites on property owned by governing authority of recreation system, § 36-64-3.1.   Law reviews.   - For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007).   JUDICIAL DECISIONS    This Code section is constitutional. Jones v. North Ga. Elec. Co., 125 Ga. 618, 54 S.E. 85, 6 L.R.A. (n.s.) 122, 5 Ann. Cas. 526 (1906); Nolan v. Central Ga. Power Co., 134 Ga. 201, 67 S.E. 656 (1910); Banks v. Georgia Power Co., 267 Ga. 602, 481 S.E.2d 200 (1997).   Section grants power of eminent domain to corporate utilities.    - The power of eminent domain is inherent in the sovereign state, but lies dormant until granted by act of the legislature; under the provisions of this section, corporate utilities supplying electric power to the public have been granted the power of eminent domain. Harwell v. Georgia Power Co., 154 Ga. App. 142, 267 S.E.2d 769, aff'd, 246 Ga. 203, 269 S.E.2d 464 (1980).    This section limits interest in land which power company can condemn for electric distribution purposes. B. & W. Hen Farm, Inc. v. Georgia Power Co., 222 Ga. 830, 152 S.E.2d 841 (1966).    This section confers no power to condemn undivided interest or easement in water-power the remainder of which is owned by the electric-light corporation which is seeking to condemn. Oconee Elec. Light & Power Co. v. Carter, 111 Ga. 106, 36 S.E. 457 (1900); Nolan v. Central Ga. Power Co., 134 Ga. 201, 67 S.E. 656 (1910).    Civil Code 1910, § 5240 (see O.C.G.A. § 22-3-20) did not conflict with former Civil Code 1910, § 3633 (see O.C.G.A. § 44-8-3), defining the rights of a riparian owner of a nonnavigable stream. Nolan v. Central Ga. Power Co., 134 Ga. 201, 67 S.E. 656 (1910).   Determination of "public use".    - Whether a purpose is a public or private purpose within the meaning of the law relating to eminent domain does not depend on use or the amount of use by the public, but upon the right of the public to such use. Rogers v. Toccoa Elec. Power Co., 163 Ga. 919, 137 S.E. 272 (1927).   Foreign corporation domesticated in Georgia has right to condemn land.    - A corporation chartered in another state with the right to own and operate an electric plant and engage in the business of generating, transmitting, and selling electricity for commercial and domestic use, and later domesticated in this state by appropriate proceedings, has the right to condemn the land of others for the purpose of running its lines or wires over the land and using and maintaining poles and appliances thereon in order to distribute electric current to the public from its plant. Perry v. Folkston Power Co., 181 Ga. 527, 183 S.E. 58 (1935).    A foreign corporation owning or controlling water power in this state, when domesticated under the laws of Georgia, can exercise the right of eminent domain in this state for the purposes mentioned in this section. A foreign corporation without being so domesticated has no such right. Head v. Rich, 61 Ga. App. 293, 6 S.E.2d 73 (1939), aff'd, 190 Ga. 680, 10 S.E.2d 183 (1940) (decided under former Code 1933 § 22-1601).   De facto corporation cannot exercise eminent domain.    - A power company that has become a de facto corporation cannot exercise the powers conferred by this section. Rogers v. Toccoa Power Co., 161 Ga. 524, 131 S.E. 517, 44 A.L.R. 534 (1926).   Effect of county ordinance impeding rights under section.    - Pursuant to O.C.G.A. § 46-3-201(b)(9), the electric corporation, which had to condemn property in order to effectuate its project, did not have to demonstrate to the county the necessity or the appropriateness of its proposed project; thus, the county ordinance prohibiting the electric lines for three years was unconstitutional. Rabun County v. Ga. Transmission Corp., 276 Ga. 81, 575 S.E.2d 474 (2003).    Forsyth County, Ga., Unified Development Code §§ 21-6.1 and 21-6.5, were defective because they required a utility to successfully comply with the ordinance's procedures, and authorized the county to deny "any or all" portions of an application; as such, they were unconstitutional infringements on the utility's legislatively-delegated power of eminent domain. Forsyth County v. Ga. Transmission Corp., 280 Ga. 664, 632 S.E.2d 101 (2006).   Eminent domain power not lost through furnishing power in another state.    - A corporation having the power of eminent domain would not lose such power because it also furnished electric power in Tennessee. Rogers v. Toccoa Elec. Power Co., 163 Ga. 919, 137 S.E. 272 (1927).    This section does not authorize power company to maintain nuisance. Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749, 65 S.E. 844 (1909); Central Ga. Power Co. v. Ham, 139 Ga. 569, 77 S.E. 396 (1913).   Notice to owner required.    - Preliminary to the exercise of the power granted by this section, for the purpose of erecting an electric line with necessary poles and fixtures, it is incumbent upon the power company to serve a notice on the owner of the property sought to be condemned, which notice shall describe the property with the same definiteness as is required in a deed of conveyance of land. Gunn v. Georgia Power Co., 205 Ga. 85, 52 S.E.2d 449 (1949).    In proceeding under this section sole question for assessors is amount of compensation to be paid; the assessors cannot pass upon the legal power of the company to institute such proceedings. Rogers v. Toccoa Power Co., 161 Ga. 524, 131 S.E. 517, 44 A.L.R. 534 (1926).    Injunction is proper remedy to determine power of eminent domain. The remedy of the landowner who seeks to challenge the legal power of a company to condemn is to apply to a court of equity to enjoin the condemnation proceedings if they are unauthorized. Rogers v. Toccoa Power Co., 161 Ga. 524, 131 S.E. 517, 44 A.L.R. 534 (1926).    Injunction is proper remedy for questioning legality of corporation's charter. Rogers v. Toccoa Power Co., 161 Ga. 524, 131 S.E. 517, 44 A.L.R. 534 (1926).   Owner who permits appropriation of land estopped from ejectment or injunction.    - If a landowner stands by and permits, without legal objection, a public utility company to appropriate the landowner's land to its necessary corporate use until such becomes a necessary and constituent part of its service to the public, and the rights of the public intervene to such extent that to oust the company would interrupt the service and deny it to the public, the landowner, not for the protection so much of the company but for the benefit of the public, will be estopped from recovering the land in ejectment from enjoining its use for the service, but will, if he moves in time, be remitted to an appropriate action for damages. Wiggins v. Southern Bell Tel. & Tel. Co., 245 Ga. 526, 266 S.E.2d 148 (1980).   Damage to other property from power lines on right of way.    - The power, telephone and telegraph companies all have the power of eminent domain, and could exercise that power to acquire the right to erect their lines upon the railroad's right of way. That they choose to acquire by contract such right, as against the railroad, does not render the railroad company liable for their alleged failure also to compensate the plaintiff for the taking or damaging of the plaintiff's property by their erection of power and communication lines on the railroad's right of way. Tompkins v. Atlantic Coast Line R.R., 89 Ga. App. 171, 79 S.E.2d 41 (1953).    Cited in Pye v. State Hwy. Dep't, 226 Ga. 389, 175 S.E.2d 510 (1970); Harwell v. Georgia Power Co., 246 Ga. 203, 269 S.E.2d 464 (1980); Cox Enters., Inc. v. Carroll City/County Hosp. Auth., 247 Ga. 39, 273 S.E.2d 841 (1981); Banks v. Georgia Power Co., 220 Ga. App. 84, 469 S.E.2d 218 (1996).   RESEARCH REFERENCES   Am. Jur. 2d.   - 26 Am. Jur. 2d*, Eminent Domain, §§ 144 et seq., 290 et seq., 306 et seq.   25 Am. Jur. Pleading and Practice Forms, Waterworks and Water Companies, § 2.   C.J.S.   - 29A C.J.S., Eminent Domain, §§ 27 et seq., 117 et seq. 73 C.J.S., Public Utilities, §§ 151 et seq., 277 et seq.   ALR.    - Furnishing electricity to public as public use or purpose for which power of eminent domain may be exercised, 44 A.L.R. 735; 58 A.L.R. 787.   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 proceeding, 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.   Electric light or power line in street or highway as additional servitude, 58 A.L.R.2d 525.   Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.   Eminent domain: right to enter land for preliminary survey or examination, 29 A.L.R.3d 1104.   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.   Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's having power of eminent domain, 87 A.L.R.3d 1265.   Liability for overflow of water confined or diverted for public power purposes, 91 A.L.R.3d 1065.   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: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.   Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding, 23 A.L.R.4th 631.