Department of Transp. v. Olshan

• Decision Date: 09 July 1976
• Docket Number: No. 30921,30921
• Citation: Department of Transp. v. Olshan, 227 S.E.2d 349, 237 Ga. 213 (Ga. 1976)
• Parties: DEPARTMENT OF TRANSPORTATION v. Morton L. OLSHAN et al.
• Court: Georgia Supreme Court

Page 349

227 S.E.2d 349

237 Ga. 213

DEPARTMENT OF TRANSPORTATION v. Morton L. OLSHAN et al.

No. 30921.

Supreme Court of Georgia.

July 9, 1976.

Arthur K. Bolton, Atty. Gen., William C. Joy, Asst. Atty. Gen., Atlanta, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, J. Madden Hatcher, Jr., Kelly, Champion, Denny & Pease, Forrest L. Champion, Jr., Columbus, for appellees.

GUNTER, Justice.

This is an eminent domain case instituted under the Georgia Code of Public Transportation, Code Ann. Ch. 95A-6, enacted in 1973.

The Department of Transportation filed an in rem action in Muscogee Superior Court against a tract of land of approximately 64 acres. The complaint alleged that sixteen parties, giving their names and addresses, were 'owners' of the tract of land. The Department also filed a Declaration of Taking and deposited the sum of $206,530 as estimated just and adequate compensation with the court 'for the use of the persons entitled hereto.' On the same date that the estimated compensation was deposited with the clerk, the trial judge entered a judgment vesting title in the tract of land in the condemnor. The judgment also ordered that the person in possession of the tract of land, 'as well as the named condemnees,' show cause before the court on December 2, 1975, why possession of the tract of land should not be surrendered to the condemnor not later than sixty days from the filing of the Declaration of Taking.

Five parties named as 'owners' in the complaint filed, on December 1, 1975, appeals to a jury pursuant to Code Ann. Sec. 95A-610, and they also filed motions and other pleadings. The motions and pleadings sought to vacate the Declaration of Taking, enjoin the condemnation proceedings, and require the condemnor to sever the tract of land into several parcels and proceed anew with several condemnation actions against each severed parcel.

On December 3, 1975, the trial judge entered an order temporarily restraining the condemnor from proceeding with the action until further order of the court and ordering the condemnor to show cause on December 18, 1975, why the condemnation action should not be enjoined, why the Declaration of Taking should not be vacated, and why the condemnor should not be required to proceed with several separate actions applicable respectively to the several parcels contained within the one tract of land sought to be condemned in the one action.

After a hearing the trial judge, on January 6, 1976, entered a judgment which dissolved the temporary restraining order previously entered, granted immediate possession of the 64 acre tract to the condemnor, and denied the condemnees' application to vacate the Declaration of Taking.

This judgment also contained two other provisions which are the reason for the appeal by the condemnor in this case. Those two provisions are: 'D. That Department of Transportation is hereby ordered and directed to segregate the parcels of land, by owners of said parcels, which form the composite tract of land described in its petition and to appraise each of said parcels separately and distinctly and to allocate the sum of money which represents its estimated just and adequate compensation for the taking of each parcel as described in the above findings of fact and to pay said sum or sums of money into this court on or before February 17, 1976; and,

'E. That separate trials be held in this court to determine just and adequate compensation for the taking of each parcel of land described above in the findings of fact.'

These latter two provisions of the trial judge's order were superseded pending this appeal.

The condemnor contends here that the trial judge was without authority to order separate appraisals in this in rem action, was without authority to order estimated compensation paid into the registry of the court on the basis of each separate parcel, and was without authority in this in rem action to order separate trials with respect to each individual parcel contained herein the boundaries of the 64 acre tract.

This record and the trial judge's findings of fact show that Martin L. Olshan bases his ownership rights in the 64 acre tract on a warranty deed to him duly recorded. The ownership rights of the other condemnees involved in this appeal are based on deeds to secure debt. The first-lien security deeds to them as grantees are not to the entire 64 acre tract, but they respectively hold security deeds on various parcels contained within the boundaries of the entire 64 acre tract.

The issue here, therefore, is whether the 'owners' whose ownership rights are based on security deeds to a portion of an entire tract of land that is being condemned are entitled to separate appraisals and separate trials as to the respective parcels in...