State Highway Dept. of Ga. v. Hendrix, 20724

• Decision Date: 04 April 1960
• Docket Number: No. 20724,20724
• Citation: 215 Ga. 821,113 S.E.2d 761
• Parties: STATE HIGHWAY DEPARTMENT OF GEORGIA v. W. G. HENDRIX.
• Court: Georgia Supreme Court

Page 761

113 S.E.2d 761

215 Ga. 821

STATE HIGHWAY DEPARTMENT OF GEORGIA v. W. G. HENDRIX.

No. 20724.

Supreme Court of Georgia.

April 4, 1960.

Syllabus by the Court.

Where a proceeding in rem is brought to condemn property for a public use under the provisions of Chapter 36-11 of the Code as amended by the act of 1938, tender of the amount awarded by the assessors to the apparent or ostensible owner of such property is not a condition precedent to the condemnor's right to pay the award into the registry of the court and enter an appeal to a jury.

Eugene Cook, Atty. Gen., Paul Miller, Carter Goode, Asst. Attys. Gen., F. H. Boney, W. J. Gibbons, Atlanta, R. U. Harden, Waynesboro, Graydon Reddick, Cordele, for plaintiff in error.

Robert Edward Surles, Summerville, for defendant in error.

Foley, Chappell, Kelly & Champion, Kenneth M. Henson, Columbus, John W. Maddox, Oscar M. Smity, Rome, Harold Sheats, Griffin Patrick, Jr., Atlanta, S. B. McCall, Adel, John G. Cozart, Columbus, for parties at interest, not parties to record.

CANDLER, Justice.

Pursuant to the provisions of Chapter 36-11 of the Code of 1933, as amended by an act approved January 13, 1938 (Ga.L.1937-38, Ex.Sess., p. 251), the State Highway Department of Georgia filed a proceeding in rem to condemn and thus acquire fee-simple title to a described 3.733-acre tract of land in Chattooga County as a right of way for a State-aid road. The petition alleges on information and belief, that W. G. Hendrix is the apparent owner of the land sought to be condemned. It also alleges: 'Because the petitioner believes that there may be taxes due on said land, and that the title of the apparent owner is incomplete, and that there may be persons unknown and non-resident who may have some claim or demand thereon, and for other reasons, petitioner brings this action in the Superior Court of Chattooga County, Georgia, as by statute in such cases made and provided.' Assessors were selected, agreed to serve, took the oath required of them, and on September 16, 1957, and after an inspection of the property and a hearing, a majority of them awarded $3,359.70 for the land described in the petition and $1,800 as consequential damages to adjacent lands of W. G. Hendrix, or a total award of $5,159.70, and filed their award in the office of the clerk of the Superior Court of Chattooga County. Being dissatisfied with the amount awarded, the State, highway Department on September 18, 1957, filed its appeal to a jury in the Superior Count of Chattooga County, and the full amount of the award was at that time paid into the registry of the court. On September 30, 1957, W. G. Hendrix applied for an order directing the clerk of the court to pay the award to him, alleging sole ownership in himself of the property being condemned. His application was granted on the day it was presented and the award was paid to him on the same day by the clerk's check which he accepted and cashed. There was no exception to that order. On March 19, 1959, he filed a motion to dismiss the condemnor's pending appeal. His motion alleges that tender of the award to him was a condition precedent to the State Highway Department's right to file and prosecute an appeal from the assessors' award, and that no such tender was made to him before the appeal was entered and before the award was paid into the registry of the court. His motion was heard and denied on April 17, 1959, and he excepted to that judgment and sued out a writ of error to the Court of Appeals. That Court, with Chief Judge Felton dissenting, reversed the judgment excepted to, and the case came to this court for review on certiorari to the Court of Appeals.

1. In the instant case the Court of Appeals held that a tender of the award to W. G. Hendrix and its payment into the registry of the court on his refusal to accept it, was a condition precedent to the State Highway Department's right to file and prosecute its appeal to a jury in the Superior Court of Chattooga County; and since this is the only ruling excepted to in the petition for certiorari, no other question raised can or will be considered by this court. See Trammell v. Throgmorton 210 Ga. 659, 82 S.E.2d 140, and citations. As authority for the ruling excepted to, the Court of Appeals cited and relied on Woodside v. City of Atlanta, 214 Ga. 75, 103 S.E.2d 108, and State Highway Department v. Wilson, 98 Ga.App. 619, 106 S.E.2d 544, each of which involved a proceeding in rem to condemn land for a public use, a proceeding which had been brought under the provisions of Chapter 36-11 of the Code of 1933 as amended by the act of 1938. While those cases hold that the condemnor's appeal could not be maintained and prosecuted, yet the record in each of them shows that the award there made had neither been tendered to the owner nor paid into the registry of the court. This being true, they are not in point on their facts with the instant case, and therefore constitute no authority for the ruling made by the Court of Appeals on which error is assigned in the application for certiorari.

2. It is a matter of common knowledge in this State that an apparent owner's title to land is frequently found to be incomplete or defective for various reasons, and that title to land is often encumbered by liens for taxes and otherwise, which may or may not be enforceable. Prior to the cited condemnation act of 1914, the only method of procedure which this State supplied for exercising the right of eminent domain was Chapters 36-3, 36-4, 36-5 and 36-6 of the Code. Under those methods of condemnation, no suit was filed; no judicial ascertainment of the rights of the parties was, or could be, had thereunder. If there were conflicting interests or unknown interests or unascertained interests in the land involved, no remedy to determine such issues was provided thereby, the only available recourse for adjudicating such matters being a suit in equity. Only an easement in the land could be acquired by the condemnor, and the property reverted to the owner on termination of the use for which it was condemned. The proceeding there provided for was only one between the condemnor and the apparent owner of the land desired and needed for a public use. In the instant case, there is no contention that the State Highway Department did not have a right to condemn fee-simple title to the property involved for the use alleged in its petition, no attack is made on the validity of the condemnation act of 1914 as amended in 1938, and the sufficiency of the petition as brought in rem is not challenged by demurrer or otherwise. Such act was 'intended to make simpler and more effective the method of condemnation in those cases where conflicting * * * questions render a judicial supervision of the procedure desirable.' Code, § 36-1115. It is expressly declared by Code (Ann.) § 36-1104 that, 'Whenever the State of Georgia or the United States, and all persons or corporations having the privilege of exercising the right of eminent domain shall desire to take or damage private property in pursuance of any law so authorizing and shall find or believe that the title of the...