Zuber Lumber Co. v. City of Atlanta
| Decision Date | 09 July 1976 |
| Docket Number | Nos. 30855-30857,s. 30855-30857 |
| Citation | 237 Ga. 358,227 S.E.2d 362 |
| Parties | ZUBER LUMBER COMPANY v. CITY OF ATLANTA et al. GOULD INVESTORS TRUST v. CITY OF ATLANTA et al. CITY OF ATLANTA v. GOULD INVESTORS TRUST et al. |
| Court | Georgia Supreme Court |
Greene, Buckley, DeRieux & Jones, John D. Jones, Gregory J. Digel, Atlanta, for Zuber Lumber Co.
Henry L. Bowden, Thomas F. Choyce, Atlanta, for City of Atlanta.
Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Jeffrey W. Kelley, Atlanta, for Gould Investors Trust.
Huie, Ware, Sterne, Brown & Ide, W. Stell Huie, Atlanta, for MARTA.
Swift, Currie, McGhee & Hiers, Atlanta, for B. F. Goodrich Co. and others.
This interlocutory appeal and interlocutory cross appeals are here by certificate prior to a jury trial as to value and prior to a determination by the trial court of the relative interests of the alleged condemnees in the proceeds, as determined by a jury, eventually to be awarded.
Gould Investors Trust is the owner of the condemned property, and its ownership is subject to certain outstanding liens; B. F. Goodrich Company is a lessee of Gould; Zuber Lumber Company is a lessee of Goodrich.
In January of 1975 the City filed a condemnation action pursuant to the Special Master Act (Code Ann. Ch. 36-6A) to acquire the subject land and interests therein for the use of the Metropolitan Atlanta Rapid Transit Authority (MARTA). The City sought to acquire fee simple title to a portion of the land; it sought to acquire permanent slope easements in a portion of the land; it sought to acquire two-year construction easements in a portion of the land; and it sought to acquire a permanent sewer easement in a portion of the land.
A Special Master was appointed by the trial judge; responsive pleadings were filed by the condemnees raising legal and constitutional issues; the Special Master conducted a hearing and entered an award on February 21, 1975; the condemnees and the condemnor filed exceptions to the award of the Special Master, and they also filed appeals to a jury in the superior court pursuant to Code Ann. § 36-614a; on March 10 11, and 12 the trial judge entered three separate orders that sustained certain exceptions of the condemnees and condemnor and remanded the case to the Special Master with directions from the trial judge contained in his three orders; the Special Master then entered a second award, considerably in excess of the amount of his first award, on April 7, 1975; the City filed four exceptions to the second award; Gould filed eight exceptions to the second award; Goodrich filed five exceptions to the second award; Cauble and Company, another condemnee claiming an interest in the proceeds, filed five exceptions to the second award; and Zuber filed seven exceptions to the second award. The City filed an appeal from the second award to a jury in the superior court pursuant to Code Ann. § 36-614a.
On April 9, 1975, the trial judge entered an order overruling all exceptions to the second award, denying motions to dismiss the condemnation action, and denying injunctive relief sought against the condemnor. A certificate for immediate review of that order was granted by the trial judge.
The trial judge also entered a judgment placing title to the subject property (the interests therein condemned) in the condemnor upon payment of the amount of the second award into the registry of the court.
These interlocutory appeals followed, and we now have them for decision.
1. Zuber first contends that the MARTA Act, Ga.L.1965, p. 2243 et seq., as amended, which permits the City to condemn property for MARTA is unconstitutional. It contends that the MARTA Act is in conflict with the MARTA constitutional amendment (Code Ann. § 2-8602).
The MARTA Act provides: 'The Authority shall have no power of eminent domain, but the City of Atlanta . . . may, for purposes of the Authority, exercise the broadest power of eminent domain available to them or any agency or joint agency thereof, under any statute, and convey to the Authority any property so acquired . . .'
We find no merit in this contention.
2. Zuber's second contention is that MARTA has no legal existence inasmuch as the constitutional amendment under which it was created was general rather than local in nature and was not passed upon by the voters of the entire state. In Camp v. MARTA, 229 Ga. 35, 189 S.E.2d 56 (1972), we held that the MARTA amendment was properly ratified. We now confirm that ruling again, and this contention is without merit.
3. Zuber's next contention is that the condemnation action by the City for MARTA purposes is violative of the Due Process Clauses and the Equal Protection Clauses of the Georgia and United States Constitutions. This contention has no merit.
4. Zuber's fourth contention is that the taking of a portion of the subject property was not 'necessary' for the project for which the property was being condemned. In Leach v. Georgia Power Co., 228 Ga. 16, 183 S.E.2d 755 (1971) this court said: 228 Ga. p. 23, 183 S.E.2d p. 759. See also Hinson v. Department of Transportation, 230 Ga. 314, 196 S.E.2d 883 (1973).
We find no merit in this contention.
5. The fifth contention is that the City's resolution authorizing condemnation did not permit the acquisition of mere easements, permanent or temporary. The City's resolution authorized condemnation proceedings 'to acquire fee simple title to the above-described properties as further described on the plat attached hereto . . .' The plats referred to showed the easements to be acquired, permanent and temporary, and the resolution in conjunction with the plats showed the interests in the property to be acquired by the condemning body. The condemnees and the trial court were plainly placed on notice of what interests in the property were being acquired.
We find no error.
6. This contention relates to liability for ad valorem taxes on the condemned property. It should be clear that the owner of the property on January 1, whether that ownership consists of the fee or an estate for years or an easement, is liable for the ad valorem taxes for that calendar year. Jones v. Morse Brothers Lumber Co., 171 Ga. 753, 156 S.E. 587 (1931). The owner on January 1, 1975, is ultimately liable to the taxing authority for ad valorem taxes for that calendar year, and there can be no liability on the condemning body unless it has accepted liability by contract.
This contention has no merit.
7. Gould's first two enumerated errors are almost identical to two of those of Zuber ruled on above. They were decided adversely to Gould's contentions.
8. Gould's third enumerated error asserts that the Special Master exceeded his power in holding that Zuber was entitled to cancel its lease with Goodrich. It further contends that the trial judge committed error in denying its exception to this provision of the second award.
We agree that this enumerated error is meritorious. A Special Master cannot determine contractual rights between two contesting condemnees. This is a matter for determination by the trial judge as will be hereinafter pointed out.
9. Gould's fourth enumerated error asserts that the Special Master exceeded his power in determining that Goodrich may, at its option, terminate the lease between itself and Gould. It further urges that the trial judge erred in not sustaining its exception to this provision in the second award.
This enumerated error is meritorious for the same reason as stated in the paragraph above.
10. These two appellees contend that the Special Master did have jurisdiction and the power to determine contractual issues between and among contesting condemnees having adverse interests in the condemnation money award. They also contend that the evidence supported the decisions made by the Special Master, and that the trial judge did not err in overruling exceptions to these determinations made by the Special Master.
These contentions are without merit and will be treated hereinafter.
11. The City, in addition to refuting numerous contentions of the other parties, essentially contends that the trial judge committed error in overruling four of its filed exceptions to the Special Master's second award.
The City excepted to that portion of the second award which found 'as a matter of law that the lease between B. F. Goodrich Company and Zuber Lumber Company is totally frustrated and that it is impossible for Zuber Lumber Company to continue its operations on the leased premises.' We agree that this contention is meritorious, and the trial judge committed error in overruling this exception.
The City contends that the trial judge committed error in overruling its exception to that portion fo the second award which found 'as a matter of law that B. F. Goodrich Company may, at its option, terminate the lease between itself and Gould Investors Trust.' We agree that this contention is meritorious, and that the trial judge committed error in...
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