Pye v. State Highway Dept.
| Decision Date | 08 June 1970 |
| Docket Number | No. 25600,25600 |
| Citation | 226 Ga. 389,175 S.E.2d 510 |
| Parties | Durwood T. PYE v. STATE HIGHWAY DEPARTMENT et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The trial court properly held that the proposed amendment to Article I, Section III, Paragraph I of the Georgia Constitution (Code Ann. § 2-301), set forth in Georgia Laws 1960, page 1225, became a part of the Constitution, and that it does not violate the United States Constitution.
2. In this condemnation proceeding under Georgia Laws 1961, page 517, as amended, the property owner is not restricted to seeking just and adequate compensation, but may defend upon the grounds set out in section 3 of such Act.
3. The Director of the State Highway Department is authorized to exercise the power of eminent domain under Georgia Laws 1961, page 517, as amended.
4. There is no merit in the contention that this condemnation proceeding is unlawful due to defective certification of the copy of the Director's order of necessity.
5. The several enumerations asserting that this condemnation proceeding cannot be maintained under the 1961 Act, as amended, supra, because of failure of the Department to comply with the conditions precedent of that Act as set forth in section 1 thereof are not valid.
6. A property owner cannot challenge the order of necessity of the Director under the 1961 Act, as amended, supra.
7. (a) Georgia Laws 1962, Extraordinary Session, September-October, page 37 (Code Ann. § 36-1303), defining Stateaid roads so as to include limited access highways, is not subject to the attacks made here.
(b) The condemnation proceeding is not unlawful in that the declaration of taking does not conform to the petition.
8. Such proceeding is not invalid for noncompliance with Code § 95-1608.
9. The trial court correctly held that this court had previously ruled Georgia Laws 1966, page 320, unconstitutional and void, and therefore failure of the Department to comply with certain of its provisions did not invalidate the condemnation proceeding.
10. Georgia Laws 1955, page 559 (the Limited-access Highway Act), is not unconstitutional for any reason assigned.
11. The evidence authorized the finding that the highway in question had been validly established, located, and laid out, and that appellant's property was entirely within its right of way.
12. The trial court was also authorized to find that such highway was lawfully designated as a State-aid road, and that the portion which lies in Fulton County and embraces the property involved here is known as Project No. F 056-1(12).
13. The condemnation proceeding was not rendered nugatory by an insufficient description and plat, by an insufficient appraiser's report, or by failure of the Department to pay or offer to pay for moving expenses or access rights.
14. There is no merit in the constitutional attack made upon Georgia Laws 1969, page 492, an Act to authorize acquisition of property for roads in advance of need.
15. The trial court did not err in granting the Department's motion for possession and ordering surrender of the property, conditioned upon the outcome of this appeal.
16. The property owner's tenth amendment to his equitable complaint, alleging damage from the Department's conditional sale of the improvements on his property, was properly dismissed.
17. The trial court correctly limited the case against the defendant Allgood to the time allowed for notice of appeal and the appeal itself.
18. No harmful error occurred by the trial court's holding that the condemnation case and the equity case involve identical issues, pleadings, and questions.
19. The rulings made, supra, are controlling against the property owner as to other contentions, including that as to the sole issue remaining being just and adequate compensation.
Durwood T. Pye, P. Russell Tarver, Atlanta, for appellant.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Atlanta, Marshall Sims, Griffin, E. Lewis Hansen, E. J. Summerour, Atlanta, for appellees.
This appeal is from a judgment in a condemnation proceeding striking all of the property owner's pleadings except as they relate to issues of value.
The proceeding was brought in the Superior Court of Fulton County by the State Highway Department against 0.413 acres of land and Durwood T. Pye, the owner of the land.
The condemnation petition, in substance, alleged as follows: that the proceeding was brought under Georgia Laws 1961, page 517, as amended, to acquire by condemnation fee simple title to the land for a right of way for a 'certain State-aid road (Limited access highway) * * * known as Project No. F. 056-1(12), said highway being located as shown on a map and drawing on file in the office of the State Highway Department'; that the Department stands ready to pay just and adequate compensation for the right of way described in the attached declaration of taking and has deposited in the court estimated just compensation ascertained in accordance with Georgia Laws 1961, page 517, as amended; that the right of way and/or rights described in the declaration of taking are for State-aid public highway purposes upon the tract of land; that the taxing authorities of the state, county and city may have some claim against the land on account of unpaid state, county and city taxes and are made parties defendant.
Attached to the condemnation petition is an order of the Director of the State Highway Department which avers, in material part, that the Department has laid out and determined to construct a certain State-aid road or highway as a part of the state highway system, known and designated as Project No. F 056-1(12) Fulton County, described more fully on a map and drawing on file in the office of the Department; that in order to maintain the projected schedule of road construction it is necessary that the right of way be acquired without delay; that the parcel of right of way herein described and listed (as Parcel 37, Owner Durwood T. Pye, Taking 0.413 acres, Annex 1 & 1-A) and shown on annexes to this order, is essential for the construction of said project; and that therefore, it is found by the Director that the circumstances are such that it is necessary that the right of way be acquired by condemnation under the provisions of Georgia Laws 1961, page 517, as amended, and is ordered that the Department proceed to acquire the title in the lands described by condemnation under said Act, and the Attorney General and his assistants are authorized and directed to file condemnation proceedings, including declaration of taking, to acquire it and to deposit in the court the sum estimated as just compensation. This order was signed by the Director of the Department. It was attested by a named person, as Secretary and Treasurer of the Department. This same officer also certified that the order is a true and correct copy of the order entered by the Director in reference to the matters therein described and that the original is on file with the Department.
Attached to the Director's order is a description of the land sought to be condemned and maps or drawings showing a portion of the project which includes the subject property.
The declaration of taking attached to the condemnation petition recited essentially the following: that the Director has entered the order above described; that the Department has caused an investigation and report to be made by a land appraiser upon which to estimate the sum of money to be deposited in the court as just and adequate compensation for the right of way above referred to; that in consequence of the sworn appraisal and report the Department estimates.$19,000 as the just and adequate compensation to be paid for the said right of way and now deposits said sum in the court to the use of the persons entitled thereto; and that therefore, the Department under authority of Georgia Laws 1961, page 517, as amended, hereby declares that the property and/or rights described in the Director's order is taken for State-aid road purposes. This declaration was signed by the Attorney General and several Assistant Attorneys General 'by authority of the Director' of the Department.
Also attached to the condemnation petition is the affidavit of an appraiser. It concludes with the statement that he had determined that just compensation is.$19,000.
The Department also filed a motion for possession of the property it sought to condemn.
The property owner filed an equitable complaint (case number 43,979) with amendments, seeking to have the condemnation proceeding declared void. He also filed an answer to the condemnation proceeding (case number 43,838) with amendments an answer to the Department's motion for possession, and interrogatories to the Department. It is not necessary to set forth these pleadings here, since they will be dealt with in the appropriate divisions of the opinion.
Upon the hearing considerable evidence was adduced. Testimony as to the location and limits of the right of way for the project in question, No. F 056-1(12), was given by two engineering officials of the Department. Documentary evidence included maps and drawings, minutes of meetings of the State Highway Board, a resolution of that Board, affidavits of the property owner, and answers of the Department to his interrogatories.
The condemnation proceeding and the equitable complaint were ordered consolidated for purposes of the order and judgment and the appeal.
In its judgment the trial court granted the Department's motion to strike the property owner's amendment to his complaint seeking damages; granted the Department's motion for possession of the property, conditioned on the outcome of this appeal; made findings of fact and conclusions of law; and dismissed all of the property owner's amended pleadings except insofar as they relate to questions of value.
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