West v. Department of Transp.

• Decision Date: 12 November 1985
• Docket Number: No. 71210,71210
• Parties: WEST v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

Page 45

338 S.E.2d 45

176 Ga.App. 806

WEST v. DEPARTMENT OF TRANSPORTATION.

No. 71210.

Court of Appeals of Georgia.

Nov. 12, 1985.

Durwood T. Pye, Atlanta, for appellant.

Charles C. Pritchard, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

The jury in this condemnation case returned a verdict for $20,000, as just and adequate compensation for the property taken. The condemnee on appeal contends the trial court should have dismissed or annulled the Department of Transportation's ("DOT") declaration of taking because the property was not needed for public purposes and DOT did not produce any orders or documents justifying the condemnation; and further that the trial court erred in placing the burden of proof upon the condemnee in its charge. Held:

1. OCGA § 32-3-5(a)(1) requires the condemnor in its condemnation to set forth "(1) [t]he facts showing the right to condemn." Nowhere is it stated or provided that a condemnor must set forth the necessity of its condemnation of a certain property. In Savannah, Fla., etc. R. Co. v. Postal Telegraph-Cable Co., 112 Ga. 941(2), 945, 38 S.E. 353, concerning condemnation by a telegraph company pursuant to statutory authority, the Supreme Court held: "When the right to condemn the right of way of the railway company was conferred upon the telegraph company, the power to select such portion and so much of the right of way as might be necessary for erecting, maintaining, and operating its telegraph lines was conferred upon it.... It was not obliged to show there was an absolute necessity for it to take the particular strip of land described in its notice. In the very nature of things it would be impossible to show this, for ... certainly numerous other locations for such a strip could be found upon the right of way.... In general, if there appears to be no bad faith on the part of the [condemnor] in the matter of location, his discretion will not be interfered with...." See, further, Western etc. R. Co. v. Western Union Telegraph Co., 138 Ga. 420, 427, 75 S.E. 471; Savannah, Fla. etc. R. Co. v. Postal Telegraph-Cable Co., 115 Ga. 554, 560, 42 S.E. 1.

The burden of proving bad faith of the condemnor of necessity must be on the one who claims it, considering the authority given by the legislature to DOT to take by eminent domain (see OCGA § 32-3-4 et seq.), and the discretion vested in the condemning authority to determine its needs. Savannah R. Co. v. Postal Tel. Co., 112 Ga. 941, 945, 38 S.E. 353, supra.

In City of Atlanta v. First Nat. Bank, 246 Ga. 424, 425, 271 S.E.2d 821, the Supreme Court held, as to a claim that the condemnor had taken more land than was necessary and that the condemnation was arbitrary, capricious, and indicative of bad faith, that "no court in these circumstances should have interfered with the decision of the condemning authority," particularly under the statute then existing. Citing authority, the Supreme Court (at p. 424, fn. 2, 271 S.E.2d 821) said: "In the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken. [Cits.] City of Atlanta v. Heirs of Champion, 244 Ga. 620, 621 (261 SE2d 343)." In requiring proof of fraud or bad faith, or that the authority has acted beyond the power conferred upon it by law, the Supreme Court (at p. 425, fn. 3, 271 S.E.2d 821) said: "Bad faith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of ... ill will.... [I]t contemplates a state of mind affirmatively operating with a furtive design or some motive of interest or ill will. Vickers v. Motte, 109 Ga.App. 615, 619-20 (137 SE2d 77)." (See also State Hwy. Dept. v. Respess, 111 Ga.App. 787, 789, 791, 143 S.E.2d 434, where this court said, upon a claim that the condemnor in bad faith deposited less than just and adequate value of the property, that "[i]n absence of conclusive proof to the contrary, the presumption is that the public officials charged with the duty of estimating compensation under the statute performed the duty fairly" (emphasis supplied), the Supreme Court in the later case of City of Atlanta v. First Nat. Bank, supra, did not go so far as to require "conclusive proof to the contrary.")

The allegation of bad faith and fraud was made by the condemnee in this case. A hearing was held. The trial court found the condemnee had not shown bad faith or fraud by the condemnor so as to disturb its discretion in exercising its power of eminent domain.

As for a necessity that DOT produce or file an "overall order" expressing and justifying its need for the condemned land, no such requirement exists. DOT filed its declaration of taking for public purposes, brought under the authority of OCGA §§ 32-3-4 through 32-3-19. The necessity of taking the property is, as indicated in City of Atlanta v. First Nat. Bank and Savannah R. Co., supra, presumed and is barring proof of bad faith or fraud, within the discretion of the condemning body. The requirement of OCGA § 32-3-5(a)(1) that the condemnor in its taking set forth "the facts showing the right to condemn," (emphasis supplied) refers therefore to the authority under which the condemnor takes.

2. Appellant contends the trial court erred in placing the burden of proving inadequate compensation upon the condemnee, by instructing the jury that "[i]n exercising the power of eminent domain ... [DOT] is duty bound to initially estimate just and adequate compensation fairly and according to constitutional standards.... In the absence of conclusive proof to the contrary, it is presumed that [DOT] estimated just and adequate compensation fairly and according to constitutional standards."

"The general rule in condemnation cases is that the burden of proof is on the condemnor to establish what amount of money constitutes just compensation. The theory of this rule is the condemnor is in the nature of a plaintiff who is seeking relief and who must prove his case, and that the burden is on him to prove either that the property will not be damaged, or that if it will be, the amount that will be necessary to compensate the owner.... The burden of proof is on the condemnor not only to prove the value of the property taken but also to prove the amount of consequential damage to the part not taken." 10 EGL, § 110, and cases cited. (The burden of proof is on the condemnee to prove his right to additional damages. Dept. of Transp. v. McLaughlin, 163 Ga.App. 1, 292 S.E.2d 435; Stansell etc. Bros. v. City of McDonough, 50 Ga.App. 234, 177 S.E. 749).

Recently, Georgia courts have reiterated that the condemnor has...