Eminent Domain Case Law Update

by Anne W. Sapp, P.C.


LAND USA, LLC v. GEORGIA POWER COMPANY, 297 Ga. 237 (June 1, 2015).

Issues: Quiet Title, Trespass and Ejectment

The property owner filed suit against Georgia Power Company (Georgia Power) for quiet title, trespass, and ejectment, challenging the validity of a Georgia Power easement. L.J. Fuller (Fuller), the original owner, was behind on his taxes, and during the negotiation process with Georgia Power for an easement, the property was sold at a tax sale to Investga. During the redemption period, Georgia Power filed a condemnation action against the property, but dismissed the condemnation action when Fuller granted them the easement. No interested parties redeemed the property, and Investga sold the property to Land USA. Land USA sued Georgia Power alleging that the easement Georgia Power obtained from Fuller after he had already lost the property to a tax sale became a nullity when the property was not redeemed after Investga properly invoked the state barment statutes set forth in O.C.G.A. § 48-4-45. The Supreme Court concluded that although Fuller retained possession of the property, he lacked a sufficient interest in the property to grant Georgia Power a perpetual, express easement. Therefore, the easement Georgia Power obtained from the landowner became a nullity when the property was not redeemed after a buyer properly invoked the state barment statutes.

Additionally, the Court of Appeals reversed the Trial Court finding that Georgia Power’s electric line did constitute a continuing trespass for which Land USA would be entitled to seek damages. To the extent a building prohibition was required on portions of the property due to the presence of the power line, it impinged on the owner’s use and enjoyment of the property and created an additional servitude for which owner had standing to seek damages.

Finally, the Court concluded that Land USA’s ejectment claim against Georgia Power failed as a matter of law where an existing power line has become a necessary and constituent part of the utility’s service to the public, the landowner is estopped from recovering the land in ejectment or from enjoining its use for the service and is limited to pursuing an appropriate action in damages.


EVANS et al. v. DEPARTMENT OF TRANSPORTATION, 331 Ga. App. 313 (March 19, 2015); Writ of Certiorari denied.

Issue: Value subterranean mineral rights

The Department of Transportation (DOT) condemned property located with the city of Gordon, Georgia, that contained subterranean deposits of kaolin and was zoned agricultural. Under the zoning ordinance, mining was not permitted in an area zoned agricultural absent a special exception. No exception had been granted on the subject property. The Court of Appeals found that the trial court did not err in denying the condemnees’ motion in limine, because zoning considerations were relevant and material to the jury’s determination of what constituted just and adequate compensation in the instant action involving mineral deposits.

Additionally, while an expert may not render an opinion that is wholly speculative or conjectural, the fact that the expert’s opinion is based partially on speculation goes to its weight rather than its admissibility. In this case, the DOT’s expert real estate appraisers may have speculated to some degree in reaching their conclusions regarding the likelihood that a special exception would be granted for kaolin mining; however, that factor went to the weight of their testimony rather than its admissibility.

Finally, the trial court correctly charged the jury that it should consider the mineral deposits as part of its valuation of the condemned property, irrespective of whether the condemnees had mined the property or planned to mine it at the time of the taking. In this case, the jury charges on mineral deposits and zoning considerations, when construed together, were not conflicting and were an accurate statement of the law.

WHITE et al. v. THE RINGGOLD TELEPHONE COMPANY, 334 Ga. App. 325, (Nov. 4, 2015); Cert applied for.

Issues: O.C.G.A. § 22-1-6, Failure to Secure the Property by Contract; O.C.G.A. § 22-1-102.2(5), Necessity to condemn private property.

The Ringgold Telephone Company condemned approximately acres of land in Catoosa County for the purpose of providing telephone and telecommunication services. The property owners filed a Motion to Dismiss the condemnation petition and an exception to the Award of the Special Master alleging that Ringgold failed to comply with O.C.G.A. § 22-1-6. Evidence at the special master hearing showed that the 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. Therefore, the trial court properly denied Condemnees Motion to Dismiss and exceptions to the Special Master Award.

The property owners also alleged that because of pending litigation with Ringgold regarding prior contractual rights to the property, Ringgold could not procure the property. Condemnation actions are separate from suits for damages related to the property to be taken and that the latter is no reason to delay the former. Therefore, the special master and the trial court were not precluded from addressing Ringgold’s petition for taking.

Finally, the property owners also claimed that Ringgold did not show the required “necessity to condemn the private property.” O.C.G.A. § 22-1-102.2(5). Georgia law provides that the condemnor is the exclusive judge of necessity in the condemnation of private property for public purposes. Because large discretion is vested in the party having the right to condemn, the Court of Appeals found that there was sufficient evidence to show the necessity of the taking.

FINCHER ROAD INVESTMENTS, LLLP v. CITY OF CANTON, GEORGIA, 334 Ga. App. 502 (Nov. 13, 2015); Cert applied for.

Issues: Dismissal of Condemnation Action, Attorney Fees and Expenses of Litigation, compensation for temporary taking.

The City of Canton (the City) filed a condemnation action against Fincher Road Investments, LLLP (Fincher Road). Fincher Road filed a Notice of Appeal and Motion to Set Aside the condemnation petition. The City ultimately dismissed its condemnation action. Following dismissal of the condemnation action, Fincher Road filed a motion for attorney fees, costs of litigation and compensation for the City’s temporary taking of its property prior to the dismissal. The Court of Appeals held that the condemnor was entitled to attorney fees and costs of litigation under O.C.G.A. § 22-1-12 as well as additional compensation for the government’s temporary taking of its property.

EARL’S PEARLS, LLC et al. v. COBB COUNTY, GEORGIA, 334 Ga. App. 689, (Nov. 18, 2015).

Issue: Motion for Summary Judgment

D&B operated a Primrose School child care franchise on property leased from owner Earl Pearls, LLC. D&B moved for partial summary judgment as to its duty to mitigate its business loss damages alleging that the costs to relocate the school exceeded the value of the business. The Trial Court denied D&B’s motion for partial summary judgment on two grounds: first, D&B had misinterpreted and mistakenly relied upon Carroll County Water Authority v. LJS Grease &Tallow, 274 Ga. App. 353 (2005), and secondly, numerous issues of material fact existed concerning D&B’s duty to mitigate. On appeal, D&B attacked only one ground for the trial court’s denial of its motion for partial summary judgment, the interpretation of Carroll County, and did not challenge the alternative ground for the ruling involving issues of material fact. The Court of Appeals reversed the trial court’s grant of partial summary judgment to Cobb County. The appellate court concluded that the trial court erred in granting the county’s motion for partial summary judgment, because there was conflicting evidence regarding whether the condemnee’s child care franchise had been terminated at the time of the condemnation.


Issue: Pre-Judgement Interest; Attorney’s Fees and Expenses

DOT filed a condemnation petition to acquire the property of Shiv Aban, Inc. (Shiv) and deposited $430,000 into the registry of the Superior Court of Catoosa County as its estimate of just and adequate compensation for the taking of the subject property. The DOT attached to its complaint an affidavit of John Simshauser dated December 4, 2012. Shiv timely filed a notice of appeal for a jury trial in the superior court and petitioned for an interlocutory hearing before a board of assessors on the sufficiency of the amount of compensation paid into court. Following a two-day hearing, the board of assessors determined that Shiv was entitled to total compensation of $1,700,000, and the award was approved by an order of the trial court dated August 5, 2014. On Aug. 12, 2014, the DOT deposited into the registry of the court the balance due of $1.27 million. Shiv dismissed its notice of appeal for a jury trial and stated its desire to accept the award of the assessors. The DOT likewise did not further appeal the assessor’s award.

The DOT then moved that the assessors’ award be made the final judgment of the court. Shiv filed a cross-motion contending that it was entitled to prejudgment interest on the $1.27 million payment from the date of the taking through August 12, 2014, the date that sum was deposited into the registry of the court. Shiv also filed a motion for attorney fees and expenses of litigation in the superior court, arguing that under O.C.G.A. § 9-15-14, it was entitled to fees and expenses. The Cour to Appeals found that the trial court erred by failing to award prejudgment interest on 1.27 million under O.C.G.A. § 32-3-19(c), from the date of the taking through the date that amount was deposited into court, as that amount was not initially deposited by the DOT; that the trial court’s award of attorney fees were affirmed under O.C.G.A. § 9-15-14(a), based on the DOT’s use of a fundamentally flawed appraisal in support of the declaration of taking and it taking of a baseless position in the litigation; and that the trial court was authorized to make an award of attorney fees based on a contingent fee agreement and it properly apportioned the fees incurred between those associated with the DOT’s improper conduct and those that were not.

SUMMEROUR v. CITY OF MARIETTA, 2016 Ga. App. LEXIS 415 (July 8, 2016)

Issue: Requirements of O.C.G.A. § 22-1-9(3)

The City of Marietta filed a condemnation petition to acquire property owned by Ray Summerour. Following a hearing, the court-appointed special master condemned the property and awarded Summerour $225,000 which was affirmed by the Trial Court. On appeal, Summerour contends that the trial court erred in failing to dismiss the petition, arguing that the City neglected to provide a summary of the basis for its just-compensation offer in violation of O.C.G.A. § 22-1-9 (3), and that the City violated O.C.G.A. § 22-1-9 (7) by negotiating with him in bad faith. Additionally, Summerour contends that the trial court erred in failing, at the very least, to recommit the case to the special master to complete the record. Vacating the trial court’s order and remanding the case for further proceedings, the Court of Appeals found that none of the city’s offers prior to 2014 satisfied the dictates of O.C.G.A. § 22-1-9(3) and the city took several years to comply with § 22-1-9(3), which bore on the issue of whether the city acted in bad faith.

JONES v. SABAL TRAIL TRANSMISSION, LLC, 336 Ga. App. 513 (March 29, 2016)

Issues: Consolidated Hearing, Preemption, FERC certificate

Sabal Trail Transmission, LLC (Sabal) was hired to construct and operate a natural gas pipeline. The trial court granted declaratory judgment and injunctive relief authorizing Sabal to enter and survey certain property for the proposed natural gas pipeline. The property owner, Ms. Jones, claimed that she did not get adequate notice that the hearing on the Sabal’s petition would consolidate the interlocutory injunction and declaratory judgment requests set forth in the petition; however, the record shows that she did receive sufficient notice and that she acquiesced in the consolidated hearing on both issues. Jones also claimed that the trial court erred in applying state law in this matter because it is preempted by federal law, but she waived this issue by not raising it below. Likewise, the argument that Sabal did not meet the definition of the term “pipeline company” as it is used in two Code sections also was waived because it was not raised in the trial court. Finally, Jones alleged that Sabal was required to obtain a certain federal certificate before it could be authorized under a state statute to survey her property; however, the plain language of the applicable state statute imposes no such requirement. For these reasons, the Court of Appeals affirmed the Trial Court.

Ann W. Sapp is a member of the Constitutional Law and Eminent Domain sections.