Oglethorpe Power Corp. v. Goss, 41162

• Decision Date: 28 November 1984
• Docket Number: No. 41162,41162
• Citation: 322 S.E.2d 887,253 Ga. 644
• Parties: OGLETHORPE POWER CORPORATION v. GOSS, et al.
• Court: Georgia Supreme Court

Page 887

322 S.E.2d 887

253 Ga. 644

OGLETHORPE POWER CORPORATION v. GOSS, et al.

No. 41162.

Supreme Court of Georgia.

Nov. 28, 1984.

Rehearing Denied Dec. 12, 1984.

J. Douglas Stewart, John E. Girardeau, Stewart, Melvin & House, William L. Meck II, Gainesville, for Oglethorpe Power Corp.

Stanley R. Lawson, Kenneth R. Keene, Cleveland, for Peggy Goss, et al.

Arnold & Hopkins, Ross Arnold, Gary L. Glancz, Troutman, Sanders, Lockerman & Ashmore, J. Kirk Quillian, donald W. Janney, King & Spalding, Charles H. Tisdale, William S. Duffey, Jr., Edward T. Floyd, Hansell & Post, Albert G. Norman, Caryn R. May William J. Bruckner, Kilpatrick & Cody, William B. Gunter, Laurie Fowler, amici curiae. BELL, Justice.

Oglethorpe Power Corporation is incorporated under the Georgia Electric Membership Corporation Act, see OCGA Ch. 46-3, Art. 4, for the purposes of, inter alia, providing electric energy and service to its members and others. Pursuant to OCGA § 46-3-201(b)(9), Oglethorpe Power was granted the power of eminent domain in order to enable it to effectuate its corporate purposes. In accordance with its corporate purposes and statutory powers, Oglethorpe Power's Board of Directors adopted a resolution on February 14, 1983 stating that it had determined the necessity for the construction of a 115,000 volt electric transmission line in White County, Georgia, to begin at its Tullulah Lodge station and to end 18 miles west at a substation to be constructed near Helen, Georgia. The Board also directed and authorized the acquisition of rights of way for the construction of that transmission line. Oglethorpe Power subsequently determined that some portion of the property of 75 private landowners might need to be taken or damaged by the project, and it attempted to gain entry to those properties to conduct field inspections and surveys in order to determine what portions of the properties would be suitable for the project. Approximately 65 of these landowners permitted Oglethorpe Power to enter their lands; however, the appellees denied Oglethorpe Power entrance. Oglethorpe Power then filed this action seeking a court order to permit it to enter the subject properties to conduct appropriate inspections, surveys, and appraisals. It alleged that if it were allowed to enter the properties, it would amend its petition once its preliminary work was completed to show what portions of the properties it thought necessary to take or damage in connection with the project, and then pursue a final disposition of the case under the Special Master Act, see OCGA Ch. 22-2.

The appellees countered by moving the trial court to temporarily and permanently enjoin Oglethorpe Power from entering their properties. After a hearing, the trial court granted the permanent injunctive relief requested by the appellees on the ground that no public necessity existed for the placement of the proposed transmission line in the area chosen by Oglethorpe Power. Oglethorpe Power appeals, contending that the trial court erred in denying its motion to enter the subject properties for the purpose of surveying, inspecting, and appraising them, and in issuing a permanent injunction barring it from entering those properties. We agree, and reverse with direction.

1. Either by express statutory grant or, as here, by implication, a condemning body such as Oglethorpe Power has the right, incidental to its power of eminent domain, to enter private property in order to survey, inspect, and appraise the property. See 2 Nichols on Eminent Domain, § 6.02 (3rd ed. 1983); Fulton Financial Corp. v. Oglethorpe Power Corp., 252 Ga. 116, 313 S.E.2d 487 (1984); Chambers v. Cincinnati & Georgia Railroad, 69 Ga. 320, 322 (1882); Young v. Harrison, 6 Ga. 130, 150 (1849); Hicks v. Texas Municipal Power Agency, 548 S.W.2d 949 (6, 7) (Tex.Civ.App.1977); State ex rel Rhodes v. Crouch, 621 S.W.2d 47, 48 (Mo.1981). The purpose of such a right is to enable the prospective condemnor to determine whether the public needs require that the property or a part thereof be taken, and, if so, what the proper location of the project should be with respect to the property, Chambers v. Cincinnati & Ga. R.R., supra, 69 Ga. at 322; County of Kane v. Elmhurst Nat. Bank, 111 Ill.App.3d 292, 67 Ill.Dec. 25, 29, 443 N.E.2d 1149, 1153 (1982), and "thus to facilitate an intelligent, economical condemnation [proceeding]." County of Kane v. Elmhurst Nat. Bank, supra, 67 Ill.Dec. at 29, 443 N.E.2d at 1153.

2. Having decided that a prospective condemnor has a right of entry in order to make preliminary surveys and inspections, we must now decide the related issue of whether a prospective condemnor must, as a prerequisite to such an entry on the lands of another, institute condemnation proceedings and pay just compensation for any damages that might occur from the exercise of that right.

In Fulton Financial Corp. v. Oglethorpe Power Corp., supra, 252 Ga. at 116-117, 313 S.E.2d 487, by affirming the trial court's judgment, we implicitly approved the principle that a prospective condemnor does not have to institute condemnation proceedings and pay damages before exercising this right of entry. See also Chambers v. Cincinnati and Georgia Railroad, supra, 69 Ga. at 322; Young v. Harrison, 6 Ga. 130, 150 (1849); Mims v. Macon & Western R.R. Co., 3 Ga. 333, 338 (1847). It appears that courts in a vast majority of jurisdictions agree with this principle. "These courts have recognized a basic conceptual difference between a preliminary entry and a constitutionally compensable taking or damaging of property and have held that because the former is not a variety of the latter, it does not require adherence to condemnation procedures or constitutional provisions for just compensation. See Orange Water and Sewer v. Estate of Armstrong, 34 N.C.App. 162, 237 S.E.2d 486, 487 (1977); County of San Luis Obispo v. Ranchita Cattle Company, 16 Cal.App.3d 383, 94 Cal.Rptr. 73 (1971); Litchfield v. Bond, 186 N.Y. 66, 78 N.E. 719, 732 (1906); Town of Carlisle v. Department of Public Utilities, 353 Mass. 722, 234 N.E.2d 752 (1968)." County of Kane v. Elmhurst Nat. Bank, supra, 67 Ill.Dec. at 29, 443 N.E.2d at 1153. Accord, State Waste Management Board v. Bruesehoff, 343 N.W.2d 292(4) (Minn.App.1984); Indiana & Michigan Electric Co. v. Stevenson, 173 Ind.App. 329, 363 N.E.2d 1254(2, 3) (1977); Jacobsen v. Superior Court, 192 Cal. 319, 219 P. 986 (3, 4) (1923); Dancy v. Alabama Power Co., 198 Ala. 504, 73 So. 901(3-5) (1916).

Moreover, since the purpose of the right of entry is to facilitate a decision on whether and how much of the subject property to condemn, it would be illogical to require the prospective condemnor to institute condemnation proceedings and pay compensation "before making a preliminary minimally intrusive entry." County of Kane v. Elmhurst Nat. Bank, supra, 67 Ill.Dec. at 29, 443 N.E.2d at 1153. If such a requirement is imposed, and if the condemnor ultimately takes the property surveyed, then two hearings on the issue of compensation will have been conducted, when one, deciding both the compensation due for the taking and for any damages resulting from the entry, would adequately protect the landowner's interest. In addition to being judicially inefficient, the procedure espoused by the appellees would also be impractical, because the extent of the preliminary inspections and surveys, and thus the extent of the damages, if any, would be difficult to ascertain until the prospective condemnor entered the property and began its work.

Thus, we hold that a...