Harwell v. Georgia Power Co.

• Court: Georgia Court of Appeals
• Writing for the Court: McMURRAY
• Citation: Harwell v. Georgia Power Co., 267 S.E.2d 769, 154 Ga.App. 142 (Ga. App. 1980)
• Decision Date: 24 April 1980
• Docket Number: No. 58893,58893
• Parties: HARWELL v. GEORGIA POWER COMPANY

Page 769

267 S.E.2d 769

154 Ga.App. 142

HARWELL v. GEORGIA POWER COMPANY.

No. 58893.

Court of Appeals of Georgia

Argued Oct. 30, 1979.

Decided March 11, 1980.

Rehearing Denied March 25, 1980.

Certiorari Granted April 24, 1980.

J. Corbett Peek, Jr., James Garland Peek, Atlanta, for appellant.

Karl M. Kothe, Rome, for appellee.

McMURRAY, Presiding Judge.

On March 14, 1979, Georgia Power Company initiated an in rem condemnation proceeding against certain real property owned by Camille Hardy Harwell. In this condemnation before a special master pursuant to Code Ann. Chapter 36-6A (Ga.L.1957, pp. 387, 388; as amended), Georgia Power Company sought "to acquire the unencumbered fee simple title" to 71.768 acres of land for use in the Rocky Mountain Project, a pump storage project located in Floyd County. The condemnor prayed that "the Court decree and adjudge the absolute fee simple title in and to said property . . . free of lien and encumbrance, to vest in Petitioner."

The project involved in this condemnation proceeding is of a rather unique nature as will be seen from the following findings of fact by the special master:

"The project is located in the northwestern portion of Floyd County, Georgia, and its purpose is to generate electricity which, upon completion of the project, will be sold to customers of Georgia Power Company. The anticipated completion date is in 1982.

"The granting of a license by the Federal Energy Regulatory Commission is necessary for the construction of such a project. In its application for such license, the applicant is required to show a need for the power and to show what the applicant proposes to do by way of project construction. The company has been granted a license for the construction of the Rocky Mountain Pump Storage Project.

"It is to be a hydroelectric project which will generate electricity by the passing of water through turbine generating machinery. This differs from the conventional project where a dam is constructed on a river and power generation is dependent upon the water flow. A pump storage project depends upon a volume of water which is pumped from a lower reservoir into a higher reservoir during times of low demand, and in times of peak demand the water is released to flow back down to generate electricity. In the Rocky Mountain Pump Storage Project, Heath Creek has a relatively low flow, but will be dammed up to provide a volume of water. The lower reservoir will be divided into three different impoundments: a lower operating pool to cover approximately 400 acres; auxiliary pool # 1 to cover approximately 387 acres; and auxiliary pool # 2 to cover approximately 120 acres. The upper operating pool is to be constructed on top of a mountain and will cover approximately 441 acres. The lower operating pool will be located along the base of the mountain, and its normal daily level will fluctuate approximately 29 feet as water is pumped from it and then permitted to flow back into it. Auxiliary pools # 1 and # 2 will provide reserve volume which may be released over spillways into the lower operating pool when needed. The levels of the auxiliary pools will remain relatively constant. The waters of Heath Creek will be needed to replace that lost through evaporation and to maintain some flow below the dam. A transmission line will be located at the base of the mountain adjacent to the lower operating pool. It will be the only link between the power house which lies approximately 6000 feet northeasterly of the Harwell property and the switching station which lies approximately 6700 feet southerly of the Harwell property. The transmission line is necessary for the operation of the project. It will lie within 900 feet to the east side of the Harwell property.

"The property sought to be condemned, known as the Harwell property, consists of 71.768 acres and is shown according to plat of survey attached to the petition . . . All of the Harwell property at this location is being sought. It is bounded on the northwest by Big Texas Valley Road upon which it fronts approximately 917 feet; on the west by Fouche Gap Road upon which it fronts approximately 886 feet; and on the north, east, and south by property already owned by the power company. The property immediately across Big Texas Valley Road from the Harwell property is not being acquired for the project. The location of the Harwell property with reference to project pools and structures is shown on various exhibits admitted into evidence at the hearing. This property is primarily rolling wooded land with a residence and outbuildings located at the intersection of Big Bexas Valley Road and the Fouche Gap Road. A portion of the timber was cut off in 1976. As to topography, the elevation rises to the east with the highest points being along a ridge which extends along the eastern portion of the property. The ridge overlooks a gorge through which Heath Creek flows. The topography is shown on various contour maps introduced into evidence at the hearing. The most eastern portion of the Harwell tract will be approximately 200 feet from the nearest portion of the lower operating pool; the eastern half of the south boundary of the Harwell property will be approximately 1200 feet north from the nearest portion of the auxiliary pool # 2; and a portion of auxiliary pool # 2 will cover the southwestern portion of the Harwell property. The property between these pools and the Harwell property has already been acquired by the power company. The spillway on auxiliary pool # 2 is located approximately 1050 feet from the Harwell property.

"According to the testimony of the power company's hydraulics engineer, the stripping of vegetation off the Harwell property would result in erosion off the steep slopes, this resulting in silt flowing into the lower operating pool and into auxiliary pool # 2. The silt would reduce the volume available in the reservoir for water and would reduce the generating capacity of the project. He further testified that the property sought to be condemned is needed as a buffer zone to protect project structures from sabotage, that a zone will be a more effective barrier for this purpose than a fence; and that plans call for the power company to be able to exclude all visitors from various areas in order to protect project structures. He further testified that in his opinion the property sought to be condemned is necessary to the power company for security purposes in view of its location with respect to the lower operating pool, the spillway on auxiliary pool # 1, and the transmission line to be located at the base of the mountain in a position vulnerable to damage from saboteurs who might be located on the Harwell property. He further testified that an access road over the Harwell property is necessary for access from the Fouche Gap Road to the north abutment of the spillway; that the acquisition of air rights is necessary in order that vegetation growth may be permitted so as to provide ground cover; and that the acquisition of mineral rights is necessary in order to prevent access of anyone attempting to remove them. A necessity for the property for security purposes is said to exist during the construction period as well as for access to the spillway during construction. After construction is completed, the property will be allowed to re-vegetate and to return to its natural state in order to minimize erosion.

"Exhibit . . . to the application for license has to do with recreational uses and it reflects a proposed camping area to include the Harwell property . . . Exhibit . . . is a preliminary environmental impact study and reflects that a license is granted for a period of 50 years. It is presently the practice for a holder of a license to apply for a new license as the original term of the old license draws near to an end. Exhibit . . . and amendment to Exhibit . . . include visitation projections and proposed charges for recreational users. According to present plans, the fees from recreational users will be used to cover operating costs for the recreational aspects of the project. The entire original Exhibit . . . has been amended, but the amendment has not yet been acted upon by the Federal Energy Regulatory Commission. Exhibit . . . provided the power company's assessment of the environmental impact of the project. The government has now completed its own study of the environmental impact.

"Various exhibits introduced into evidence at the hearing reflect various proposed recreational uses over the project area including a visitor's center, picnic areas, boat rentals, concession centers, camping areas, trailer park areas, fishing areas, hiking trails and overlook areas. Under present plans, the power company reserves the right to completely restrict all recreational uses as it might determine to do in cases of strike or civil disobedience. Under the amendment to Exhibit . . . , no recreational facilities are presently planned to be located on the Harwell property. Amendment to Exhibit . . . shows the areas of the Harwell property as the 'area best suited for development.'

"The development of the Harwell property for recreational uses such as camping trailer sites with associated buildings such as a general store and crafts shop is a feasible use of the property according to testimony of a civil engineer and land planner who has prepared a lay out for such development for the Harwells."

Georgia Power Company, as condemnor, set forth in its petition that the acquisition by...