Lopez-Aponte v. Columbus Airport Com'n, LOPEZ-APONTE

• Decision Date: 24 June 1996
• Docket Number: LOPEZ-APONTE,A96A0516,Nos. A96A0515,s. A96A0515
• Citation: 473 S.E.2d 196,221 Ga.App. 840
• Parties: et al. v. COLUMBUS AIRPORT COMMISSION. PHILLIPS v. COLUMBUS AIRPORT COMMISSION.
• Court: Georgia Court of Appeals

Page 196

473 S.E.2d 196

221 Ga.App. 840

LOPEZ-APONTE et al. v. COLUMBUS AIRPORT COMMISSION.

PHILLIPS v. COLUMBUS AIRPORT COMMISSION.

Nos. A96A0515, A96A0516.

Court of Appeals of Georgia.

June 24, 1996.

James D. Patrick, Jr., Columbus, for appellants.

Rothschild & Morgan, W. Donald Morgan, Jr., Grogan, Jones, Rumer & Gunby, Thomas M. Jones, Columbus, for appellee.

BLACKBURN, Judge.

In Case No. A96A0515 Antonio Lopez-Aponte and Catherine E. Lopez appeal, and in Case No. A96A0516 Rosie Mae Phillips appeals the trial court's orders denying their motions to dismiss the condemnation petitions filed against them by the Columbus Airport Commission (CAC). The issues raised in these two appeals are identical, and we refer to the appellants in both cases collectively as the condemnees.

The trial court referred CAC's petitions to condemn avigation or air easements over the condemnees' residences to a Special Master. Condemnees filed substantially similar motions to dismiss CAC's condemnation petitions for failure to state a claim upon which relief could be granted, alleging, inter alia, that CAC lacked the authority to condemn their property and that even if CAC had been empowered to condemn property, CAC had failed to obtain permission to condemn the subject property from the City of Columbus, the entity which had constitutional authority to exercise the power of eminent domain over said property, pursuant to OCGA *198s 6-3-22. The Special Master denied their motions.

Exceptions to the Special Master's ruling were filed by the condemnees, and their motions to dismiss were renewed on appeal to superior court. After a hearing that was not transcribed, the superior court denied the condemnees' motions to dismiss. We granted the condemnees' applications for interlocutory appeal.

1. The condemnees' motions are properly characterized as motions to dismiss for failure to state a claim upon which relief could be granted due to the petitions' failure to allege the facts establishing CAC's right to condemn, in violation of OCGA § 22-2-102.2(1), that section provides, in part, that a petition to condemn "shall set forth: (1) The facts showing the right to condemn." (Emphasis supplied.)

Although the hearing on the condemnees' motion to dismiss was unreported, we are not precluded from reviewing the petitions to determine if they complied with the statutory requirements of OCGA § 22-2-102.2 because this is a question of law. See Cobb County v. Jones Group, P.L.C., 218 Ga.App. 149, 153, 460 S.E.2d 516 (1995) (review of denial of motion to dismiss de novo).

"Taking private property for the benefit of the public is an exercise of high power, and all the conditions and limitations provided by law must be closely followed. Too much caution cannot be observed to prevent oppression and abuse." Sims v. City of Toccoa, 256 Ga. 368, 369, 349 S.E.2d 385 (1986).

(a) The condemnation petitions cite CAC's enabling legislation as amended and the 1968 constitutional amendment creating the Muscogee County Airport Commission, ¹ as granting to CAC the power of eminent domain to condemn property necessary for airport purposes. ² Contrary to CAC's conclusion, the enabling legislation grants CAC only the power to "acquire, own, lease, and to hold title [in] its own name to all lands and improvements now owned by Muscogee County for airport purposes ... whether within or without the limits of Muscogee County.... Said ownership is to include ... any other lands or improvements which may hereafter be acquired for airport use by Muscogee County [now Columbus]." (Emphasis supplied.) Ga. L.1968, p. 1657. It is clear that the power of eminent domain was not expressly granted to CAC by the legislature, but remained with Muscogee County [now Columbus]. All other methods of acquiring property were expressly granted to CAC by the legislature.

CAC ignores the failure of the legislature to expressly include the power of eminent domain or right of condemnation in the enabling legislation and relies upon the right to "acquire" certain property contained therein as bestowing the authority to condemn property by necessary implication, citing Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 698, 10 S.E.2d 375 (1940) (power of eminent domain may be given by necessary implication). The facts here do not authorize or require the application of this theory in the present case.

Essentially every citizen of Georgia enjoys the right to acquire property, but no one would contend that therefore they have the right to condemn property. The Georgia Supreme Court has previously recognized the distinction between the right to "acquire" property and the right to "condemn" property. See Howard v. City of Atlanta, 190 Ga. 730, 741, 10 S.E.2d 190 (1940). In Howard, our Supreme Court held that although the 1927 amendment to Atlanta's city charter granted to it the authority to acquire land in an adjoining municipality, it did not grant to it the authority to condemn land therein.

Had the legislature intended to grant directly to CAC the power of eminent domain, it could easily have done so expressly, as it did in the establishment of the Thomaston-Upson County Office Building Authority (TUCOBA). The enabling legislation in that instance provided: "[TUCOBA] shall have the powers: To acquire in its own name by purchase ... or by condemnation ... real property." (Emphasis supplied.) The preamble to the enabling legislation in that instance further provided, in part, that its purposes are " 'to provide the right and power for [TUCOBA] to condemn property of every kind and character ... (and) ... to provide that this amendment shall be liberally construed.' " (Emphasis supplied.) Savage v. Thomaston-Upson County Office Bldg. Auth., 205 Ga.App. 634, 637, 422 S.E.2d 896 (1992).

In Savage, the power to condemn private property for airport purposes was granted directly to TUCOBA by the enabling legislation, which provided for its liberal construction. The absence of a similar direct grant of the power to condemn private property in the enabling legislation in the present case, coupled with the inclusion therein of references to "[o]ther lands ... which may hereafter be acquired for airport uses by Muscogee County [now Columbus]," makes clear the intention of the legislature that such authority not be granted to CAC, and thereby precludes the finding that such was intended by necessary implication.

(b) CAC also contends that as an independent political subdivision of the State of Georgia, created by the legislature, it has the authority to condemn property for airport purposes pursuant to OCGA § 6-3-22. CAC did not rely on nor refer to OCGA § 6-3-22 in its petitions below. However, its reliance thereon on appeal is misplaced in any event.

OCGA § 6-3-22 does not independently grant the power of eminent domain to any entity. It...