Opinion
A13A1684
01-06-2014
EMERY v. CHATTOOGA COUNTY, GEORGIA.
THIRDDIVISION
ANDREWS,P. J.,
DILLARDand MCMILLIAN, JJ.
NOTICE:Motions for reconsideration must be physically received in our clerk'soffice within ten days of the date of decision to be deemed timely filed.
McMillian, Judge.
Appellant Gerald W. Emery appeals following the denial of his petition toset aside a declaration of taking filed by Chattooga County, Georgia("County"). As more fully set forth below, we now affirm.
The record shows that the property that is the subject of the taking (the"Property") is a 60 foot ingress and egress easement across an unpaved roadthat runs through Emery's property and provides access to approximately 20residents living along Hairs Lake Road. Pursuant to OCGA § 32-3-1, the Countyfiled a declaration of taking to acquire Emery's interest in the easement afterthe other property owners adjoining the road approached the County and agreedto convey their interest in the easement to the County for the purpose of theroad being made part of the county road system, meaning, in this case, that itwould be paved and maintained by the County. Emery filed a petition to setaside the taking, which he thereafter amended several times. Following ahearing, the trial court denied the petition, and this appeal ultimatelyfollowed.
The superior court originally issued an order denyingthe petition on November 1, 2012, and Emery filed a notice of appeal from that orderon November 19, 2012. The County moved to dismiss this appeal because Emery'sdemand for a jury trial on the issue of value of the property remained pendingin the superior court. The superior court vacated its original order denyingEmery's petition to set aside, and Emery dismissed his challenge to the valueof the property with prejudice. The superior court entered another orderdenying Emery's motion to set aside on April 1, 2013, and Emery timely filed anappeal from that order to this Court. Because it now appears that no issueconcerning value remains pending below and that the appeal from the April 1,2013 order was timely filed, we have jurisdiction of this appeal. TJWEnterprises, LLLP v. Henry County, 261 Ga. App. 547 (583 SE2d 144) (2003); Skipperv. Dept. of Transp., 197 Ga. App. 634, 635 (1) (a) (399 SE2d 538) (1990).
As stated above, the County filed its declaration of taking in this caseunder OCGA § 32-3-1 (a), which allows the condemning authority to acquire a feesimple, or lesser interest, in property for "present or future public road orother transportation purposes." Under subsection (b), public road purposesinclude, among other things, "rights of way . . . and any and all purposeswhich may be reasonably related to the development, growth, or enhancement ofthe public roads of Georgia." The County stated in the declaration of takingthat the Property would be used for the purpose of establishing a public roadright-of-way and for the specific purpose of construction, maintenance andrepair of a road right-of-way and other related purposes.
OCGA § 32-3-11 authorizes the superior court to set aside, vacate orannul a declaration of taking under certain restricted circumstances, includingthe "abuse or misuse of the powers of this article." OCGA § 32-3-11 (b) (3).But the statute further provides that the "power of the court in this respectshall not be construed as extending to a determination of questions ofnecessity, [and] there shall be a prima-facie presumption that the property orinterest condemned is taken for and is necessary to the public use provided forin this article." OCGA § 32-3-11 (a). Further, Emery, as the condemnee, has theburden of proof to show that the taking should be set aside under OCGA §32-3-11. Chamblee v. Dept. of Transp., 189 Ga. App. 334, 336 (5) (375SE2d 626) (1988)
1. In two related enumerations of error, Emery argues the County abusedor misused its discretion when it condemned the property because the evidenceshowed that the condemnation was done for a few private citizens, served nopublic purpose and was not "'reasonably related to the development, growth, orenhancement of the public roads of Georgia.'"
It is true, as Emery argues, that "[t]he condemnor is not authorized toexercise the power of eminent domain to acquire property to be used by privateindividuals for private use and private gain." Dept. of Transp. v. Livaditis,129 Ga. App. 358, 361 (3) (199 SE2d 573) (1973). And it is likewise true thatthe evidence in this case showed that the decision to condemn the property wasnot made until the surrounding landowners approached the county commissionersand requested that the County acquire the road. Further, the record reflectsthat the road primarily would be used for ingress and egress by theapproximately 20 residents who lived there or who currently owned land thereand might build there in the future and that the general public would notfrequently use the road.
However, there is nothing to show that the general public would not havethe right to use the road. As we have explained, "[i]f the public generallyhave a right and but one person uses the [road], the purpose is deemed to bepublic; but if the public generally are excluded, and the use of the [road] islimited to that of an individual enterprise, it is not public, and the power ofeminent domain can not be exercised for [that] purpose." Livaditis, 129Ga. App. at 362 (3). In other words, "[t]he amount of usage by the generalpublic is not controlling." Livaditis, 129 Ga. App. at 363 (3). AustinEnterprises v. DeKalb County, 222 Ga. 232, 233 (149 SE2d 461) (1966). Seealso Back v. City of Warner Robins, 217 Ga. App. 326, 328 (3) (457 SE2d582) (1995). Further,evidence was also presented that the fire chief had approached the County aboutacquiring the road after the fire department had responded to a fire in thearea, and testimony was presented that paving and maintaining the road would beof benefit to emergency responders. Lastly, the decision to condemn theproperty was consistent with the County's policy to acquire, improve andmaintain roads as parts of the county were developed, and the residentsrequested that they do so. Under these circumstances, we cannot say that theCounty acted in bad faith, that it abused or misused its discretion, or that itexceeded its authority when it acted to condemn the property. Accordingly, thesuperior court did not err by refusing to set aside the taking under OCGA §32-3-11. Back, 217 Ga. App. at 328 (3).
Emery argues that under Brannen v. Bulloch County,193 Ga. App. 151 (387 SE2d 395) (1989), the public interest is not served ifthe taking is based solely on what is best for private entities. But, as weexplained in Back, Brannen "was an extreme case in which 'the evidenceestablished that the project was undertaken with the improper intent to benefitone private powerful entity,' id. at 156 and its holding is limited to itsextreme facts." (Punctuation omitted.) Back, 217 Ga. App. at 328 (3)(quoting Brannen, 193 Ga. App. at 156).
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Judgment affirmed. Andrews, P. J., and Dillard, J., concur.