Walker v. Georgia Power Co.

• Decision Date: 06 January 1986
• Docket Number: Nos. 71497,71498,s. 71497
• Citation: 177 Ga.App. 493,339 S.E.2d 728
• Parties: WALKER v. GEORGIA POWER COMPANY. GEORGIA POWER COMPANY v. WALKER.
• Court: Georgia Court of Appeals

Page 728

339 S.E.2d 728

177 Ga.App. 493

WALKER v. GEORGIA POWER COMPANY.

GEORGIA POWER COMPANY v. WALKER.

Nos. 71497, 71498.

Court of Appeals of Georgia.

Jan. 6, 1986.

Roy E. Barnes, Jerry A. Landers, Jr., Marietta, for appellant.

Wallace Miller, Jr., Macon, W. Franklin Freeman, Jr., Forsyth, for appellee.

DEEN, Presiding Judge.

On November 7, 1975, Georgia Power Company filed a petition in the Superior Court of Monroe County seeking to condemn .0295 acre of land known as the Wright Family Cemetery, located within a larger tract of land it owned in fee simple on which it planned to construct a plant, and to relocate and reinter the bodies buried there "under the provisions and by the authority of" OCGA § 36-60-6. Named as defendants were appellant Vivian Walker and thirty other known heirs at law of the persons buried therein. Because the cemetery might contain other gravesites then unknown and undiscovered, and the rights of ingress and egress thereto and from, the petition also sought to condemn the incorporeal hereditaments of any and all other persons having or claiming any rights or interests in the cemetery, so that all interested parties could come into court and make a claim to the proceeds to which they were entitled as just and adequate compensation. The petition asked for the appointment of a special master and stated that Georgia Power intended to relocate the gravesites from the Wright Family Cemetery to another location on property it had purchased adjacent to the Juliette Methodist Church, bearing all expenses and in compliance with OCGA § 36-60-6 and the regulations promulgated thereunder by the Georgia Department of Public Health.

Pursuant to this statute, a permit was requested and granted by resolution of the Monroe County Commission on November 19, 1975, approving and authorizing Georgia Power's plans for disinterment and relocation of the cemetery. A special master was appointed, and on November 20 his award was entered and filed, recommending that the property be condemned by a judgment in rem and that the sum of $12 be awarded to the defendants as the actual market value of the property. Judgment was entered accordingly on November 21. The disinterment and reinterment was carried out by a licensed funeral director at the new cemetery plot, which was about three miles from the former location on a public road, enclosed in a chain link fence with a rock and wrought iron entrance constructed by Georgia Power with space available for at least fifty more graves, and each of the new gravesites was marked with marble headstones and footstones, whereas the original locations had been indicated only by sunken depressions in the ground.

The record shows no objection, complaint or appearance by appellant Walker or any other party before the Monroe County Commission in regard to the application for the reinterment permit, no objection to the grant of the permit or its execution, nor to the location of the relocated cemetery site. No answer, pleading or writing of any kind was filed by the defendants in the condemnation proceeding prior to the award of the special master. On November 28, 1975, appellant Walker filed an appeal in superior court of the special master's award but the case was inactive until February 8, 1980, when Georgia Power filed a motion for summary judgment supported by affidavits and other documents recounting the above stated facts. Mrs. Walker filed an affidavit on March 8, 1980, devoted primarily to a recitation of her visits to another family cemetery and further stating that "the award for her easement rights in both cemeteries [was] grossly inadequate, and should be decided by a jury." Attached to this affidavit were certified copies of the minutes of the Board of Commissioners which purported to "indicate that there was no bona fide resolution in the minutes to move the bodies out of the cemeteries [and] that any resolution not incorporated in the minutes [is] void." On May 15, 1985, Mrs. Walker filed another affidavit alleging ownership of a legally undescribed 0.122 acre of land condemned by Georgia Power. Although it had previously overruled Georgia Power's motion for summary judgment, on May 16, 1985 the superior court granted its motion to dismiss Mrs. Walker's appeal of the award of the master on the grounds that she had no compensable interest as required by OCGA § 22-2-102, that Georgia Power had relocated the cemetery in compliance with the provisions of OCGA § 36-60-6, and that no rights of Mrs. Walker had been extinguished, since she still had all the rights she had previously held in the former cemetery. Mrs. Walker and Georgia Power both appeal.

Since this action arose as a condemnation proceeding initiated by Georgia Power under OCGA Title 22-2, we conclude that the matter is properly before us by direct appeal (see OCGA § 5-6-35(a)(1)), even though the amount of damages in controversy is less than $2,500, which would otherwise necessitate dismissal for failure to follow the discretionary appeal procedures of OCGA § 5-6-35(a)(6). See Brown v. Assoc. Fin. Svc. Corp., 175 Ga.App. 553, 333 S.E.2d 888 (1985). Having chosen and agreed to use the special master proceeding, the parties are bound by the law applicable to such proceedings. MARTA v. Central Parking System, 167 Ga.App. 649, 651(2), 307 S.E.2d 93 (1983).

1. Mrs. Walker asserts, without any allegation or showing of what she considers to be the true value, that the small amount awarded her did not sufficiently compensate her for the other rights she lost, specifically, the right to be buried in the family cemetery with her ancestors, the right to visit, decorate and honor the graves of her ancestors in the place they were laid to rest, and to have unimpeded ingress to and egress from the cemetery for these purposes. Georgia Power contends that Mrs. Walker failed to show any compensable right, title or interest in the condemned cemetery plot and thus established no standing to recover in this proceeding. There seems to be no dispute between the parties that Georgia Power holds title in fee simple to the larger tract within which the original cemetery was contained, as well as the property onto which it was relocated. Georgia Power, by the bringing of the action to condemn the original family cemetery has also implicitly recognized that Mrs. Walker and the other heirs at law had some interest in the property. Thus the question presented here is whether this was a compensable interest within the contemplation of the laws of eminent domain, and it is one which has not been previously addressed by the appellate courts of this state.

Our research of cases from other jurisdictions reveals that while "the appropriation of land for a family burial plot is often described as a 'dedication,' without clarity as to whether a dedication in the strict legal sense is meant or whether a family burial ground was established in a manner other than by a legal dedication ..., [o]ther cases take the view that a private or family cemetery or rights incident to it can be established or acquired only by a means, other than dedication, which is legally sufficient to accomplish the creation or a transfer of an interest in real property, or an appropriation pursuant to the provisions of an applicable statute. [Cits.]" Annotation: Private or family cemeteries, 75 A.L.R.2d 591, 594 (1961). "Though a common law dedication, in its sense of a commitment to the general public, does not arise to create a private or family burial ground, there is authority for the proposition that owners may, without formal written documentation, establish and set aside a place of burial for the benefit of those included within a family neighborhood and that such may be evidenced by acts, acquiesence or other conduct evincing clearly such a purpose.... Whether the legal creation of a family or community cemetery be labeled a 'dedication,' a 'trust' or an 'easement' the rights and limitations in the area of the fee owner and of others having an interest are the same and are reasonably well established." Mingledorff v. Crum, 388 So.2d 632, 635-36 (Fla.App.1980). See also Aldridge v. Puckett, 291 Ala. 104, 278 So.2d 364 (1973); Grinestaff v. Grinestaff, 318 S.W.2d 881 (Ky.1958).

The case most frequently acclaimed and followed, and the subject of the ALR annotation, is Heiligman v. Chambers, 338 P.2d 144 (Okla.1959), in which the Oklahoma Supreme Court held: "When a...