Montgomery v. City of Sylvania

• Decision Date: 16 November 1988
• Docket Number: No. 77514,77514
• Parties: MONTGOMERY et al. v. CITY OF SYLVANIA.
• Court: Georgia Court of Appeals

Page 403

376 S.E.2d 403

189 Ga.App. 515

MONTGOMERY et al. v. CITY OF SYLVANIA.

No. 77514.

Court of Appeals of Georgia.

Nov. 16, 1988.

Rehearing Denied Dec. 5, 1988.

Grady K. Reddick, Sylvania, for appellants.

Hugh T. Hunter, Sylvania, for appellee.

BIRDSONG, Chief Judge.

Condemnation. Faye and R.A. Montgomery appeal from the grant of summary judgment to the City of Sylvania. The Montgomerys are the owners of lot 16 in the Sylvan Heights subdivision in Sylvania. They purchased their home on June 6, 1980. An employee of the City stated that he installed an electrical transmission line across the corner of the Montgomerys' lot in the summer of 1977, before the Montgomerys purchased it. The line was erected to provide electricity to Perry and Vendora Cobb's home. The Cobbs purchased their land in July of 1977. The house on the Cobbs' land was built in 1977.

All lots in the Sylvan Heights subdivision have a dedicated five feet easement across the backside of the lot for installation of electrical utilities. The City's electrical transmission line complained of in this action is one which extends across the southwest corner of the lot, and not across the backside easement. The electric line enters the Montgomery property on the west side approximately 15 feet north of the southwest corner and exits the property 35 feet east of the southwest corner on the backside of the lot.

Although the City's employees stated they installed the line in the summer of 1977, Faye Montgomery stated in her deposition that there was no electrical transmission line across her property when she and her husband purchased it in 1980. Later, she revised her testimony to say that there was an electrical line across the five feet easement across the backside of their property when they moved in, but this last line was installed without notice to or approval by them. The City admits that it upgraded the line across the Montgomery property "a couple of years ago" (1986) to add "two more lines" to provide "three phase" current at a shopping center. Also, the local television cable operator hung his line from the same electrical transmission poles.

In July of 1987, Mrs. Montgomery directed a letter to the City Manager of Sylvania with a bill for $14,000 "for the rental of property for the use of utility lines" crossing her property. She advised the City she was willing to settle the account if the City paid her $75 for damage done to her VCR by a power surge and the City would remove "all utility lines from [her] property that service other residents other than [the] Montgomery home." The City filed this condemnation action and requested appointment of a special master to determine the value of the easement across the Montgomery property. The Montgomerys filed a counterclaim and prayed that the court require the City "to remove the telephone line and cable T.V. line from Defendant's property." The special master determined that the value of the condemned property easement was $390.30. The trial court granted summary judgment for the City, and the Montgomerys have filed this appeal. Held:

Appellants enumerate but two errors: (1) "Appellants have been denied their rights of appeal." (2) "Appellants have not had an opportunity to have a hearing on their Motion to Set Aside the Taking...."

1. We find many bases for finding no reversible error. First, appellants' argument and citation of authority section in his brief consist of two lines: "Appellants contend that they have been denied their rights of appeal and to have judicial review of the Order of Condemnation." The principal purpose of argument is to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support appellant's allegation of error. See Craft v. Hosp. Auth. of Hall County, 173 Ga.App. 444(1), 326 S.E.2d 590. A mere recital, or repetition, of the enumerated error is not argument. Craft, supra; Hartford Accident, etc., Co. v. Taylor, 144 Ga.App. 64, 66, 240 S.E.2d 575; Summerfield v. Decinque, 143 Ga.App. 351, 352, 238 S.E.2d 712; Cochran v. Baxter 142 Ga.App. 546, 547, 236 S.E.2d 528. Because there is no argument or citation of authority in the brief, all enumerations are abandoned. Craft, supra; Taylor, supra; Summerfield, supra.

Secondly, any claim that appellants were denied their "rights of appeal" is sophistry, as they are presently participating in their "rights of appeal." Further, any allegation of error because of a lack of hearing on their motion to set aside is due solely to their failure to request oral hearing. The motion was filed by counsel but contains no rule nisi or request for oral hearing. The Uniform Rules provide that motions "shall be decided by the court without oral hearing" unless requested. Rule 6.3. The record before us shows no request was ever submitted, thus there is no error. Cherry v. Coast House, Ltd., 257 Ga. 403(1), 359 S.E.2d 904; Dallas Blue Haven Pools v. Taslimi, 256 Ga. 139, 354 S.E.2d 160; Kelley v. First Franklin Fin. Corp., 256 Ga. 622, 623-624, 351 S.E.2d 443.

2. The only relief specifically prayed for by appellants was for removal of the telephone and television lines from their property. Hence, appellants have been compensated for the taking of their property and they do not contest the amount of the award. They seek only the removal of the offending transmission line.

There is a dispute as to when the electrical transmission line was installed over appellants' property. The City presented conclusive evidence that the original electrical line was installed to provide electricity for a home constructed in 1977 and appellants did not purchase their property until 1980. It is general law that a subsequent purchaser of land takes his title subject to the servitudes then existing against the property. Duffield v. DeKalb County, 242 Ga. 432, 436(4), 249 S.E.2d 235; Georgia Power Co. v. Kelly, 182 Ga. 33, 37, 184 S.E. 861. However, as to this point, Mrs. Montgomery states that the line which cut across the corner of her lot was not there when the property was purchased. Thus, this matter is at issue and must be settled by a jury if it is determined to be material.

However, it is not contested that at sometime in 1987 the Montgomerys became aware of the electric...